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Sharing Central Asia’s Waters: The Case of Afghanistan

Saturday, January 19th, 2013

The following post is by Margaret J. Vick.  Ms. Vick served as the embedded advisor to the Ministry of Energy and Water, Government of the Islamic Republic of Afghanistan from 2009-2010 in a program funded by USAID. She can be reached at mjvick [at] gmail.com.

Afghanistan has four major river basins.  All are international watercourses as that term is defined in the 1997 UN Convention on the Law of Non-navigational Uses of International Watercourses.  When looking at the waters in Afghanistan the regional history cannot be ignored and the circumstances that often provide an impetus to negotiate water-sharing agreements should be examined.

The major basins in Afghanistan are the Panj and Amu Darya, the Kabul, the Helmand, and the Hari-Rud.  The Panj, a tributary of the Amu Darya, is shared with Tajikistan and the downstream Amu Darya is shared with Uzbekistan and Turkmenistan.  The Kabul River is tributary to the Indus River and is hydrologically shared with India and Pakistan, but because of the division of the basin by the Indus Waters Treaty, is not legally shared with India.  The Hari-Rud is shared with Iran and Turkmenistan, while the Helmand River is shared with Iran.  The Panj/Amu Darya, Hari-Rud, and Helmand river basins are all endorheic or terminal basins.
Of the four basins, only the Helmand River has a water sharing agreement.  The Helmand River Treaty between Afghanistan and Iran was negotiated in the early 1970′s and entered into force in 1977 (see, e.g., here).  The history of the treaty is unclear.  Little has been written about the negotiation process and some recent commentaries have questioned its entry into force (see, e.g., here).  What is known is clouded by the cold-war era in which it was negotiated. Nevertheless, the treaty is an agreement based on modern principles for benefit sharing in a region with few positive examples.

The Kabul River flows to the Indus River.  Because some of its tributaries (namely the Bara, Kunar and Swat, rivers) originate in Pakistan, the Kabul basin forms a hydrologic phenomenon in which Afghanistan and Pakistan are both upstream and downstream from each other.  Both countries need better flood control measures on the river and Afghanistan is interested in the river for domestic water supplies and power generation for its capital city, Kabul.  Talks between the two riparians over water management, however, historically have been secondary to the cross-border tensions.

The Panj River, which forms a considerable portion of the Afghanistan-Tajikistan border before being joined the Vakhsh River to form the Amu Darya, is dominated by remnants of the Soviet barter system of water for oil.  The economy of the region is hampered by a lack of energy, frequent flooding, and political conflict over water.  All four of the Panj/Amu Darya basin riparians (Afghanistan, Tajikistan, Uzbekistan, and Turkmenistan) could benefit from developing the basin.  Afghanistan, however, has not participated in any of the numerous agreements regarding the Aral Sea and was never part of the Soviet water regime in the region.  Because of its outsider status it may be able to play an important role in regional water sharing discussions in the future.

In fact, Afghanistan and most of its neighboring states are in need of water for domestic purposes, reliable irrigation supplies, flood control and hydropower. The circumstances seem ripe for an agreement. Nevertheless, in this region of conflict, cross-border incursions and lack of trust, circumstances and needs may not enough to reach a water-sharing agreement.  The identified requirements and the political will of the countries, to date, has not been enough.  There needs to be a foreseeable and reliable means to accomplish the sharing of water.

As a result of decades of conflict, the human capacity in Afghanistan is limited due to the millions of people killed, the millions who fled the country, and the millions more denied an education.  Those few Afghans who are available to negotiate water-sharing agreements are highly skilled and dedicated; yet, the need for their services within Afghanistan is immediate and immense.

Water sharing agreements take time and commitment.  The Afghan government must decide how to best use their limited capacity.  If they cannot have certainty as to whether agreed-upon dams, power plants and infrastructure will be built, how should they allocate and dedicate their limited resources?  The Afghan Government is faced with the dilemma of which comes first: the agreement or the commitment to build the infrastructure.  Until one or more donors step forward to fund both the process for negotiations and the infrastructure, neither may occur.  Individuals within the Afghan government have little time and few resources to engage in protracted negotiations without a promise of results on the ground.

A donor’s commitment to build watercourse infrastructure made contingent upon a water-sharing agreement has been a common impetus for agreements on international watercourses and for states within a federal system.  The 1960 Indus Waters Treaty took decades to negotiate and required continuing commitments from the World Bank to fund its implementation.  It is presently unclear whether such a commitment is available for any of the basins shared by Afghanistan and the neighboring states.

The economic viability of Afghanistan depends on protection from floods and drought, adequate domestic supply, reliable irrigation, and power.  All can be advanced through water-sharing agreements with neighboring states.  Development of the Kabul River basin is key for stability in the southeastern region as is development of the Panj basin in the north.

Notwithstanding, until an external commitment is secured for technical support and training for the process of negotiation, as well as to implement the results of negotiations, the benefits of Afghanistan’s and the region’s transboundary rivers will remain unrealized.

Posted in Central Asia, Transboundary Rivers | 2 Comments »

Minute 319: A Creative Approach to Modifying Mexico-U.S. Hydro-Relations Over the Colorado River

Monday, December 10th, 2012

The following post is by Regina M. Buono, an associate attorney with the law firm of McGinnis, Lochridge, & Kilgore L.L.P in Austin, Texas. She can be reached at rbuono [at] mcginnislaw.com or found on Twitter as @ReginaBuono.

The Colorado River provides water to more than 36 million people in the western United States and Mexico.  Management of the river is governed by the Treaty for the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, which was signed in 1944 (“1944 Water Treaty”).  While the treaty is generally viewed positively for having served as a basis for successful cooperation for nearly 70 years, efforts to comply with its terms have occasionally been strained.  This was especially evident early last decade when Mexico fell behind in treaty-mandated water deliveries to the Rio Grande as a result of a prolonged regional drought.

In response to ongoing climatic changes and uncertainties, the 1944 Water Treaty was recently amended by Minute 319 to provide for both nations to share surpluses and water shortages, permit Mexico to store some of its allotted water in the United States, facilitate investment in Mexico’s water infrastructure, and restore the environmental flows of the Colorado River to the Gulf of California, albeit on an experimental scale.

Minute 319 allows Mexico, which has a dearth of storage capacity, to store some of its Colorado River allotment in Lake Mead, located in Arizona and Nevada.  This arrangement is an extension of Minute 318, which modified the 1944 Water Treaty after an earthquake in the Mexicali Valley in 2010 severely damaged Mexico’s canal-based water distribution system.  In addition to enhancing Mexico’s storage capacity and water security, the deal helps keep the water level in Lake Mead more predictable, which in turn protects the water intake pipes that supply the vast majority of Las Vegas’ drinking water.  Minute 319 also grants the U.S. a one-time allotment of 124,000 acre-feet of water in return for U.S.-financed infrastructure improvements in Mexico.  The infrastructure improvements are intended to generate water savings that will benefit all river users.

In addition, the amendment permits the U.S. to send less water to Mexico in drought years, thereby sharing the burden previously borne solely by U.S. water users.  It allows for the creation of an Intentionally Created Mexican Allocation (“ICMA”), wherein Mexico may adjust its water delivery schedule to allow for later use.  Mexico may adjust its order in dry years to offset the mandated reduction with deliveries from the ICMA or other water previously deferred. In years in which Lake Mead is projected to be at or above certain elevations and in which Mexico has deferred delivery of or created a certain minimum amount of water, Mexico may increase its order for river water in specified increments based on the water elevation. However, the annual delivery of deferred water may not exceed 200,000 acre-feet and total annual delivery may not exceed 1.7 million acre-feet.

Finally, the amendment creates a pilot program to provide water to be used as environmental flows for the Colorado River delta, which will benefit the river and the myriad species that are found there.  The delta has been largely dry for decades; most years the flow of the river is diverted before reaching its mouth at the Upper Gulf of California, leaving the river channel completely dry more than 90 percent of the time and damaging the delta ecology and wetlands that once covered the region.  Minute 319 requires water users in the U.S. and Mexico to provide a one-time high-volume “pulse” flow of 105,000 acre-feet, which will augment base flows secured by a water trust since 2008.  Scientists and advocates hope that the pulse and base flows will create 2,000 acres of new wetland habitat and will lay the groundwork for more extensive restoration projects.

Minute 319 offers a number of benefits for both nations, as well as the water utilities and environmental organizations that depend on and care for the river.  On a practical level, Minute 319 provides water departments, cities, states, and other political subdivisions that rely on the Colorado River for fresh water with the added benefit of certainty and peace of mind, which will allow them to make better business decisions and allocate risk more precisely.  Moreover, investment in Mexico’s infrastructure (e.g., concrete-lined canals instead of the current dirt channels) will benefit water users throughout the basin as a result of greater efficiency and reduced waste, which will allow conserved water to be shared with those entities that helped finance improvements.

Although the amendment has generally been received favorably by water and governmental entities alike, it is not without its critics.  Not everyone shares the opinion that allowing Mexico to store water in the lake is an unqualified good, and some have voiced resentment that domestic water users have not been granted the same flexibility.  The Imperial Irrigation District, a primarily agricultural water district in California and the largest single recipient of Colorado River water, refused to sign the agreement because it wanted to have the same ability as Mexico to bank its water in Lake Mead.  Some parties have expressed concern that keeping more water in Lake Mead means that less water will be available for hydroelectric power generation and, because water levels in the lake serve as a drought indicator, that changes in the lake’s levels due to Mexico’s ability to store water could delay a declaration of drought, in turn postponing necessary distribution reductions.  The Confederación Nacional de Campesinos, Mexico’s national farmers’ association, has also expressed concerns, calling upon farmers to present a “united front” against the agreement, which it believes will harm agricultural producers’ economic interests.

Despite differences of opinion over its impact, the most important aspect of Minute 319 may be the basis it creates for future cooperation as the river is further impacted by overuse, drought, and climate change.  Scientific research and environmental models have demonstrated that the American southwest has been impacted by and will continue to suffer from the effects of climate variability.  It is also an area with a rapidly growing population.  While the region presents a challenge to water and environmental scientists and managers, as well as for society generally, this agreement may serve as an example of creative cooperative management for other countries facing water-related challenges.  Disagreements over water resources are projected to be a leading cause—if not a primary cause—of cross-border social and political conflict in decades to come.  Accordingly, strengthening ties between Mexican and U.S. governmental officials, scientists, and water managers is critical for facilitating future cooperation and minimizing tensions.  The successful completion of this negotiation presents a precedent for cooperation going forward, and the relationships forged in the process will be valuable for future compromises over the management of the Colorado River, as well as other transboundary waters on the border.

Minute 319 is limited to a term of five years.  The short duration may have been necessary to facilitate the amendment’s acceptance by Mexican officials, as Mexico has long considered the 1944 Water Treaty to be inviolable and complained about American management practices.  Nevertheless, officials on both sides have expressed the hope that the Minute’s implementation may be extended in the future.

Posted in International Water Law, Mexico-US Border, North America, Transboundary Rivers | Comments Off

Outcome of the Nairobi Nile Council of Ministers Meeting – An Inevitable Consequence of a level-playing field?

Tuesday, February 14th, 2012

The following post is by Dr. Salman M.A. Salman, an academic researcher and consultant on water law and policy and former water law advisor to The World Bank. He can be reached at Salmanmasalman [at] gmail.com.

The Ministers of Water Resources of the Nile Basin countries (Nile Council of Ministers, or Nile COM) were supposed to hold an extra-ordinary meeting on January 27, 2012, in Nairobi, Kenya. The purpose of the meeting was to discuss the legal and institutional ramifications of the entry into force of the Nile Cooperative Framework Agreement (CFA). That meeting was requested by Egypt and Sudan, following signing of the CFA by six of the upper riparians, namely Burundi, Ethiopia, Kenya, Rwanda Tanzania and Uganda. Coincidentally, the CFA needs six ratifications to enter into force.

The Nile Basin Countries

In fact Egypt and Sudan had asked for that meeting back in July 2010, during the eighteenth annual meeting of the Nile COM in Addis Ababa, Ethiopia. They had wanted to reopen discussion on the CFA, but the upper riparians objected. Egypt and Sudan renewed their demand for the meeting during the nineteenth annual Nile COM meeting in Nairobi in July 2011. As a compromise, it was agreed that an extra-ordinary meeting would be held in Kigali, Rwanda, on October 27, 2011, in connection with the 3rd Nile Basin Development Forum.

About a week before the meeting was to take place, Egypt and Sudan asked for a postponement. The parties then agreed to hold the meeting in Nairobi on December 27, 2011. Yet again Egypt and Sudan asked for a postponement, to which the others reluctantly agreed. That meeting was to take place on January 27, 2012 in Nairobi.

On Thursday January 26, 2012, all of the Nile ministers of water resources arrived in Nairobi except those from Egypt and Sudan. And the two nations did not ask for another postponement. Angered and frustrated, the ministers of Burundi, Ethiopia, Kenya, Rwanda, Tanzania and Uganda, in addition to the representative of the Democratic Republic of Congo (which has not yet signed the CFA), decided to hold their own meeting, but under a different umbrella. They decided to meet as the Nile Equatorial Lakes Council of Ministers (NEL COM), one of the institutions established under the Nile Basin Initiative (NBI) with its head office in Kigali. Although Egypt and Sudan are also members of the NEL COM, it seems that the upper riparian ministers decided they have the authority to hold the NEL COM meeting, and not the extra-ordinary Nile COM meeting requested by Egypt and Sudan who were absent.

The second decision taken by the NEL COM was to upgrade the observer status of Ethiopia in the NEL COM to full member. No doubt, this upgrade solidified the NEL COM and strengthened it as a coalition force against the alliance established by Egypt and Sudan under the 1959 Nile Waters Agreement. That alliance was epitomized by the establishment of the Permanent Joint Technical Committee by the two countries under the 1959 Agreement, headquartered in Khartoum.

The NEL COM discussed and approved a series of measures regarding the NEL investment program, including the strategic plan 2012 – 2016; financing from the World Bank Cooperation for International Waters in Africa (CIWA); and the investment conference to be held with the development partners in June 2012 for hydropower and water storage facilities in the NEL countries.

NEL COM Ministers

The NEL COM then turned to the CFA and took three bold decisions which can be expected to have major ramifications on the relationship between the Nile River’s upper and lower riparians.

First, the NEL COM decided to go ahead with ratification of the CFA with the view of having it enter into force and effect, and thereafter to establish the Nile Basin Commission as prescribed in the CFA. This means that the ministers have reversed their earlier decision to delay the ratification of the CFA, in light of the Egyptian revolution of January 2011, so as to give Egypt and Sudan time to reconsider their position. The ministers also agreed that they would keep each other updated on the ratification process in their respective countries.

Second, the NEL COM instructed the Chair of the Nile COM (Ms. Charity Ngilu, Kenya Minister of Water Resources) to continue discussions with the three countries that have not signed the CFA (Egypt, Sudan and Democratic Republic of Congo) with the view of bringing them to ratify the Agreement; such discussions are to be concluded within sixty days.

Third, the ministers indicated their frustrations with the indecisiveness of Egypt and Sudan regarding the extraordinary meeting that the two nations requested but failed to attend, and which the ministers believed would have been an opportunity for dialogue and cooperation. The ministers instructed Mr. Stanislas Kamanzi, the Minister of Environment and Natural Resources of Rwanda and the current chair of NEL COM, to communicate these decisions to the members of the NBI (see story from The New Times here). The outcome of the meeting was included in the Nairobi Statement.

These are no doubt major decisions that will have far reaching consequences. Thus far, Sudan and Egypt have refrained from making any comments or issuing any statements. Perhaps the two lower riparian countries realize that the idea of the extra-ordinary meeting was not a good one, because the discussion would address the ramifications of the entry into force of the CFA, and not the areas of differences between the upper and lower riparians. Those differences concern the demand of Egypt and Sudan that the CFA include explicit reference to their existing uses and rights; clear provisions on prior notification; and that the CFA should be amendable either by a consensus or majority that includes both Egypt and Sudan. The upper riparians had rejected those demands. Now, they have decided to go ahead with ratification of the CFA.

It should be added that ratification of the CFA and its entry into force will create some legal problems related to the status of the NBI Secretariat after it is replaced by the Nile Basin Commission. This is because the programs, assets, and liabilities of the NBI will be inherited by a Commission that would not include Egypt and Sudan, both of whom are active members of the NBI.

The Nile Basin is clearly going through critical and uncertain times. The emergence of the upper riparians as a power to reckon with is, in my view, an inevitable consequence of a level playing field resulting from the NBI itself.

Will the Nile countries manage to resolve their differences in the next sixty days, or is the Nile heading towards more polarization and conflicts? This is what the next few weeks will tell.

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

Posted in Africa, International Water Law, Transboundary Rivers, Water Conflicts | Comments Off

Nicaragua and Costa Rica Return to the ICJ for 3rd Case over the San Juan River

Sunday, February 12th, 2012

On December 22, 2011, Nicaragua instituted proceedings in the International Court of Justice (ICJ) against Costa Rica for “violations of Nicaraguan sovereignty and major environmental damages to its territory” (see Nicaragua’s Application and  ICJ Press Release). This is the latest dispute in a string of conflicts between the two nations that has spanned more than a century, and the third presented to the ICJ in the past few years (see prior post briefly discussing this history).

The first case heard by the ICJ—Dispute Regarding Navigational and Related Rights—instituted by Costa Rica in 2005 concerned Costa Rica’s right to freely (without obstacles or taxation) navigate the San Juan River. The Court held that, while the River is Nicaraguan territory and Nicaragua can regulate the River traffic for national security, Costa Rica has the right of navigation for the “purposes of commerce” (see pleadings and related material here). In the second ICJ dispute—Certain Activities carried out by Nicaragua in the Border Area—which was instituted in 2010 and is still pending before the ICJ, Costa Rica contested Nicaraguan military presence at Isla Calero, territory that Costa Rica claims as its own, in connection with the construction of a canal (see prior post discussing this case; see pleadings and related material here).

This latest ICJ dispute between the countries concerns a road constructed by Costa Rica parallel to the San Juan River between Los Chiles and the Delta region. According to some accounts, the road was constructed as a defensive measure against the possibility of an incursion by Nicaraguan troops (see story here). While the road runs solely on Costa Rican territory, Nicaragua contends that its construction resulted in harmful environmental effects on Nicaraguan territory—specifically silting of the San Juan River, erosion of the River banks, and harm to the surrounding ecosystem of wetlands and the Indio Maiz Biosphere Reserve.

In its complaint, Nicaragua asserts that the construction of the road, which began in July 2011, has already “resulted in dumping in the River of substantial volumes of sediments—soil, uprooted vegetation and felled trees.” It also argues that “the felling of trees and the removal of topsoil and vegetation close to the River bank facilitate erosion, and the leeching of even greater amounts of sediments into the river.” Ultimately, Nicaragua alleges that Costa Rica breached its international obligations by infringing on Nicaragua’s territorial integrity, damaging Nicaraguan territory, and violating general obligations in international law and relevant environmental conventions. In its request for relief, Nicaragua seeks restoration to the status quo ante, damages, and preparation and transmission of an appropriate transboundary environmental impact assessment (EIA).

In addressing this case, the Court is likely to refer to its 2005 decision in which it found that, while Costa Rica has rights to navigate the San Juan River, the river remains Nicaraguan territory (see 2005 decision here). Accordingly, the case could turn on whether Costa Rica’s construction of the river road caused transboundary environmental harm to Nicaragua, including the San Juan River. Based on prior decisions between the two nations, as well as international law, Costa Rica certainly is bound to respect and not harm the territory and environment of its neighbor (see e.g., 1858 Treaty on the Boundaries between Nicaragua and Costa Rica, the Cleveland Award of 1888 [English and Spanish], and the five Awards of the Umpire EP Alexander of September 30, 1897, December 20, 1897, March 22, 1898, July 26, 1899, and March 10, 1900).

Establishing a legal cause of action for transboundary harm, however, is typically dependent on showing a minimum level of harm. For example, both the UN Watercourses Convention and the UN International Law Commission’s Draft Articles on Transboundary Aquifers require harm to be substantial before it can be actionable. In the context of a transboundary watercourse, the UN International Law Commission asserted that significant harm occurs where the “harm exceed[ed] the parameters of what was usual in the relationship between the States that relied on the use of the waters for their benefit.” It also suggested that significant harm means “something more than ‘measurable’, but less than ‘serious’ or ‘substantial,’” and that an adverse effect or harm that is “not negligible but which yet did not necessarily rise to the level of ‘substantial’ or ‘important’” is considered “significant” (see footnote 123 and related text in my Article discussing the significant harm threshold). Whether Costa Rica’s actions rise to the level of significant harm remains to be seen.

As to the preparation and transmission of an EIA, the need for an EIA will depend on how the Court rules on the issue of significant harm. In the Case Concerning the Pulp Mills on the River Uruguay, the ICJ recognized that the practice of environmental impact assessment “has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource” (see Parag. 204 of the decision in the case). Hence, there first must be a determination that Costa Rica’s road building had the potential to result in a significant transboundary adverse impact before it can be argued that an EIA was required. It is noteworthy that the standard for mandating an EIA is lower than for finding an actionable injury: “may have a significant adverse impact” for the former, and “significant harm” for the latter.

On January 26, 2012, the Court issued time-limits for the two nations to file the initial pleadings in the dispute: December 19, 2012, and December 19, 2013, for Nicaragua and Costa Rica, respectively (see ICJ Press Release). In the interim, a group of environmentalists have challenged the Costa Rican government’s actions before the country’s Supreme Court and are seeking to enjoin the continued construction of the road (see story here).

As is often the case, the ICJ is in a unique position to provide guidance on an important legal matter, as well as a critical “real world” dispute.

Special thanks to law student Elana Katz-Mink, at American University’s Washington College of Law, for her invaluable assistance in developing this post.

Posted in International Water Law, Latin America, Transboundary Rivers, Uncategorized, Water Conflicts | Comments Off

Lessons Learned: From High Ross to the Columbia

Monday, October 17th, 2011

Jeff Dornbos, an associate at Warner Norcross & Judd LLP, provided the following guest post. He recently published an article, “All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes” in the Fordham Environmental Law Review (here). In this guest post, he discusses how some of the lessons presented in that article apply to the Columbia River Treaty renegotiation. Jeff wishes to thank Laura Rogers-Raleigh for her valuable research assistance.

On April 2, 1984, the United States and Canada entered into a treaty that ended the High Ross Dam controversy, a protracted dispute over a proposal to raise the height of a hydroelectric dam located on the Skagit River in Washington State. Analysis of the dispute resolution processes, and the successful outcome of the treaty, suggest that there are several advantages to organizing transboundary-water-dispute negotiations around hydrologic boundaries rather than political boundaries.

The High Ross dam, a hydroelectric dam that generates power for Seattle, is built on the SkagitRiver, which flows from the Canadian provinceof British Columbia, across the border, and into the state of Washington. The controversy arose when Seattle Light Company developed a proposal to raise the dam in order to meet its growing demand for energy. Following through with the proposal would have generated more electricity for the city of Seattle, but it also would have flooded approximately 5,475 acres of pristine wilderness in British Columbia. Ultimately, after lengthy efforts to resolve the issue, the United States agreed not to raise the height of the dam in exchange for a long-term supply of electricity from Canada, at the price it would have cost to raise the dam.

Resolution of the High Ross Dam controversy was hailed as a success on both sides of the border. President Reagan noted that it was “constructively and ingeniously settled.” Canada’s external affairs minister and the U.S. Secretary of State said it could serve as a model for resolving other transboundary disputes. It was the process, however, not the resolution, that was the most interesting aspect of the dispute. Specifically, the successful negotiations took place between representatives of Seattle and British Columbia, not high-level officials from Ottawa and Washington. According to one negotiator involved in the process, both American and Canadian government officials told local officials to figure it out and then report back when they had a solution. In the end, it was the local negotiators who played the key role in resolving the dispute.

At least two studies of the controversy (an oral history project and a research paper that based its findings largely on interviews) suggest three factors contributed to the success of the negotiations: First, even though it was a transboundary dispute, local negotiators, with local knowledge and a stake in the outcome, played a central role in resolving the dispute. These negotiators were able to balance different interests without getting caught up in other, unrelated, disputes between the two countries. Second, the resolution included the participation of a variety of interest groups. Third, the availability of both scientific and experiential knowledge was useful in achieving a mutually acceptable resolution. As the authors of the Oral History Project stated, “experiential knowledge is not clearly distinct from scientific knowledge – the two inform and influence each other to create a more richly textured public wisdom.” Involving local negotiators helped to ensure availability of sound scientific and experiential knowledge regarding the transboundary water body.

These three lessons are consistent with three fundamental aspects of transboundary water resource management: fostering long-term cooperation, ensuring public participation, and gathering accurate data. Each of these is a focus of well-known water and environmental instruments, including the Berlin Rules, the Rio Declaration, and the Watercourses Convention. Long-term cooperation is necessary to avoid the tragedy of the commons (the prisoner’s dilemma provides another useful analogy). Accurate data gathering is essential for evaluating how the actions of those using the water resources will impact it in both the short and long term. And public participation is justified both as an ends in itself and as a mechanism for better decision making.

The three lessons are also consistent with the “watershed approach” to managing water systems whereby management of water resources is based on the boundaries of the watershed rather than political boundaries. The approach is based on the understanding that political boundaries are not always the best demarcation lines for managing water resources because watersheds often cross jurisdictional and political boundaries, including international frontiers The lessons of the High Ross Dam controversy also mirror very well the EPA’s three guiding principles to the watershed approach: getting those most directly affected by decisions involved in the decision making, focusing on the geographic boundaries of the water body, and basing decisions on strong science and data.

The International Joint Commission (IJC) recognizes that the watershed approach provides a useful framework for managing transboundary water resources. In one report, for example, the IJC highlighted resolution of the High Ross Dam controversy as one of its achievements in fostering transboundary environmental management. In that same report, developed in response to a request from the United States and Canada to provide proposals for how to best assist in meeting the “environmental challenges of the 21st century,” the IJC suggested developing international watershed boards to help resolve transboundary water disputes between the United States and Canada.

The High Ross Dam provides useful lessons for future transboundary water agreements, such as the renegotiation of the Columbia River Treaty. The treaty, originally ratified in 1964, resulted from the desire of both the United States and Canada to cooperatively manage the Columbia River in order to control flooding and provide electricity. Pursuant to the treaty, the two countries constructed dams to generate electricity and regulate flooding, which have provided significant benefits to citizens of both nations.

Notwithstanding these benefits, some residents of the basin criticize the treaty, and construction of the dams, for leading to the flooding of fertile farmland, displacement of 2,300 residents, loss of tribal cultural sites, and destruction of wildlife habitats. Specifically, many residents of the basin argue that they were not given sufficient input in the original treaty negotiations. On the Canadian side, for example, dissatisfied residents have established the Columbia Basin Trust. The group’s stated function is to provide “advice on meaningful consultation processes with Basin Residents and local governments on any process to amend, renew or terminate” the Treaty. South of the border, the United States established a Sovereign Review Team that includes representatives from states, tribes, and relevant organizations, tasked with delivering recommendations for the future of the Treaty.

Although local groups are being given the opportunity to provide input on the renegotiation process, the Columbia River Treaty presents at least two opportunities for further involvement from local stakeholders. First, beyond simply getting input from local stakeholders, local negotiators could be empowered to participate in the negotiation process. Second, the treaty could be renegotiated to include the establishment of a watershed board, comprised of local experts and stakeholders from the basin, empowered to negotiate resolutions to disputes. Article XVI of the treaty, for example, could be amended to give this watershed board the ability to assist in settling differences. The board would be established around the geographic boundaries of the basin, tasked with studying the basin, and empowered to help settle differences that arise over time.

Transboundary water resources, by definition, do not fall neatly into political or jurisdictional boundaries. International transboundary water resources are not rare, as demonstrated by a United Nations-supported report, estimating that nearly half of the world’s population lives “in river and lake basins that comprise two or more countries.” Developing sophisticated international watershed boards is unlikely to be feasible in many of these transboundary basins. But the lessons from the successful resolution of the High Ross Dam controversy suggest that there are advantages to structuring negotiations over transboundary water disputes around hydrologic boundaries, not just political boundaries. While international disputes may often require some involvement of “high-level” officials, these officials should look to the boundaries of the watershed at issue and involve local stakeholders who are as closely aligned as possible to that watershed. Transboundary water agreements, for example, could include a rebuttable presumption that negotiations over transboundary water disputes begin with identifiable groups organized at the most decentralized hydrological level. Ultimately, including this rebuttable presumption would help to meet the goals of fostering long-term cooperation, promoting public participation, and gathering accurate data, such as were keys to resolving the High Ross Dam controversy.

Posted in International Water Law, North America, Transboundary Rivers | Comments Off

The Hydro-Challenges of the New State of South Sudan in the Nile Basin

Friday, May 6th, 2011

Dr. Salman M.A. Salman has just published an article in Water International on “The New State of South Sudan and the Hydro-politics of the Nile Basin” (see article). He has graciously provided the IWLP Blog with the following guest post. Dr. Salman is an academic researcher and consultant on water law and policy, and can be reached at Salmanmasalman [at] gmail.com.

On January 9, 2011, and for the next six days, the people of South Sudan exercised their right of self determination and voted overwhelmingly to secede from the Sudan and establish their own independent state. The right of self determination was the major outcome of the negotiations process between the Sudan government and the Sudan People’s Liberation Movement/Army (SPLM/A) which represent the people of South Sudan.  The official results of the referendum were announced on February 7, 2011, and the government of the Sudan formally accepted of the results of the referendum on that day. The new state of South Sudan will formally come into existence on July 9, 2011, following the end of the interim period on July 8, as the 193rd member of the global family of nations, and as the 54th African state. As a result, the Sudan will lose, among many other things, one of its main defining characteristics as the largest country in Africa.

The Southern Sudan Referendum Act that was adopted in December 2009, listed a number of issues that need to be resolved by the two parties. Among other issues, these include: nationality; currency; public service; position of joint integrated units; international agreements and treaties; debts and assets; oil fields, production and transport; oil contracts; water resources; and property. These issues are in addition to disputes on a number of border areas between Northern and Southern Sudan (which extend for more than 2.000 kilometers), as well as the Abyei dispute that was adjudicated before the Permanent Court of Arbitration (PCA), but still remains unresolved (see Dr. Salman’s article on the Abyei Territorial Dispute).

Thus, water resources are one of the more contentious area between the Sudan and the new state of South Sudan.  There are three issues involved and need resolution in this area:

  • First: reallocation between the two states of the 18.5 Billion cubic meters of water allotted to the Sudan under the 1959 Nile Waters Agreement between Sudan and Egypt. The demands of the Sudan and South Sudan are expected to be far more than the 18.5 billion. Sudan will lose  50% of the revenues of oil of Southern Sudan that it was getting during the interim period as per the Comprehensive Peace Agreement that was signed between Sudan and SPLM/A in 2005. As a result, Sudan would have to rely more heavily on irrigated agriculture to make up for the lost revenues from South Sudan oil. On the other hand, South Sudan is claiming that it has a good number of irrigation, water supply, and hydro-power projects that would need large amounts of Nile waters too. Thus, negotiations on this issue are not expected to be easy.
  • Second: The huge swamps of Southern Sudan, including the Sudd, where water losses are tremendous, are viewed by both Egypt and Sudan as a source for additional waters to the Nile. This additional water would be in the range of 20 billion cubic meters for the Nile, almost one fourth of the total amount of the Nile flow of 84 billion cubic meters measured at Aswan. The aborted experience of the Jonglei canal is a clear indication of the difficult issues surrounding the conservation of the waters of the swamps of Southern Sudan for adding more water to the Nile (see Dr. Salman’s article on Water Resources in the Sudan North-South Peace Process).  Whether South Sudan would be willing to allow construction of any such canal would depend on a host of factors including the incentives it may receive, the views and positions of the affected communities and NGOs, and the security situation in the swamps areas. The other Nile riparian countries may well have their views on the matter and may ask to be part of the process. After all, the question may be posed as to whose water is it any way?
  • Third: The new state of South Sudan is expected to have a major role to play in the current Nile dispute. The Nile Basin Cooperative Framework Agreement (CFA) has been a divisive issue. Sudan and Egypt have vehemently opposed it, while the other Nile riparian states are pushing for its adoption and entry into force. Thus far six countries (Ethiopia, Kenya, Tanzania, Uganda, Rwanda, and Burundi), out of the Nile ten riparian countries have signed the CFA. It needs six instruments of ratification to enter into force, but thus far none of the six states has ratified the CFA. Thus, if South Sudan joins as a party to the CFA, it would provide a cushion in case one of the other six changes its mind or delays its ratification. Whether South Sudan would side with the equatorial states based on ethnicity, geography and history, or would be wooed by Sudan and Egypt to refrain from joining the CFA remains to be seen.

The centrality of water resources in the issues that must be addressed in post-conflict situations has been reconfirmed by the emergence of South Sudan as an independent nation. In this case, the issues go well beyond the Sudan and the new state of South Sudan, and extend to the other riparian states of the Nile Basin.

For additional insight into and details on this fascinating topic, you can find Dr. Salman’s Article here.

Posted in Africa, Transboundary Rivers, Water Conflicts | 1 Comment »

UNDP/GEF Publish Review of Legal and Institutional Frameworks for Transboundary Waters

Thursday, May 5th, 2011

If you haven’t seen this report, its very interesting and timely. The UN Development Programme (UNDP) and Global Environmental Facility (GEF) have just published a global review of legal and institutional frameworks for 28 transboundary surface water, groundwater and marine water systems covering the Americas, Europe, Africa and Asia (full report can be found here). The report was spearheaded by Richard Kyle Paisley, Director for the Global Transboundary International Waters Research Initiative at the University of British Columbia. Here is an excerpt from the description:

The project, with a life-cycle of three years, seeks to facilitate good governance and effective decision making in international waters through the identification, collection, adaptation and replication of beneficial practices and lessons learned from a wide range of experiences. The project focuses on institutional harmonization and strengthening, capacity building in regard to integrated water management, and forecasting the hydrological impacts from climate change and the anticipated responses to these changes.

The report’s analysis is organized by a common set of 18 criteria and is intended to provide information that can be used to support further research and analysis, with the ultimate goal of identifying a set of common elements of good governance for transboundary freshwater and marine water bodies as well as groundwater systems. This report is based on primary materials that establish legal and institutional frameworks, such as international agreements including treaties and conventions, where applicable, protocols or action plans.

The full report can be downloaded here.

Posted in International Water Law, New Resources & Information, Transboundary Aquifers, Transboundary Rivers | Comments Off

Burundi Signs New Nile River Agreement

Monday, February 28th, 2011

Timing is everything! In the wake of the turmoil in Egypt (and probably the secession of South Sudan), Burundi has taken the rather bold step of becoming the sixth signatory to the Agreement on the Nile River Basin Cooperative Framework (CFA), a new treaty intended to realign the colonial era water rights and usage regime on the Nile River that has existed for more than a half-century (see Bloomberg Business Week report).  The significance of this step relates to Egypt’s vehement opposition to the CFA (mostly notably, Article 14), as well as the threats that the hegemon has made over the years with regard to any changes in the existing allocation framework.

Burundi’s signature brings the total number of signatories to six, which is the minimum number of States needed for the Agreement to come into force. All that is needed now is that the signatories ratify the CFA in accordance with their own domestic procedures. The other five signatories are Ethiopia, Kenya, Rwanda, Tanzania, and Uganda. The Democratic Republic of Congo, which had taken a lead role in promoting the Agreement, is expected to sign soon, possibly later this year. Eritrea was not involved in the process leading to the CFA.

Once ratified, the CFA will undermine Egypt and Sudan’s long-standing claims that the Nile has already been apportioned according to a 1959 treaty in which the two nations allocated around 90% of the river’s waters to themselves. It would also contravene Egypt’s persistence that it holds a veto right over all upstream hydro projects under a 1929 agreement with Britain (the region’s former colonial overseer). See my prior postings discussing this in more detail here and here.

Taken in light of the ongoing disorder in the Middle East, Burundi’s action may be viewed in the spirit of freedom and emerging societal participation and an effort to democratize the management of the Nile River. It may also be viewed as opportunistic now that both Egypt and Sudan are in transition. Regardless, as anyone in politics will attest: timing is everything!

Posted in Africa, International Water Law, Transboundary Rivers, Water Conflicts | Comments Off

Costa Rica Institutes Proceedings in ICJ against Nicaragua Over Río San Juan Conflict

Sunday, November 21st, 2010

On 18 November, Costa Rica instituted proceedings in the International Court of Justice [ICJ press release] against Nicaragua alleging unlawful “incursion into, occupation of and use by Nicaragua’s Army of Costa Rican territory as well as breaches of Nicaragua’s obligations towards Costa Rica” under a number of international treaties and conventions. The complaint focuses on the incursion of Nicaragua armed forces across the Río San Juan into territory that Costa Rica claims as its own.

According to Nicaraguan President, Daniel Ortega, Nicaragua is merely seeking to restore what is rightfully theirs. As reported in the Tico Times [here], Ortega stated: “In the 1600s and 1700s, the river covered an enormous amount of territory at its delta. And as the zone has dried, the river has moved and (Costa Rica) has continued to advance and take possession of terrain that doesn’t belong to it. The way things are going, if the San Juan River continues to move north and join with the Río Grande of Matagalpa (in the northern zone), that’s how far (Costa Rica) would claim its territory extended.” Ortega further asserted that “Nicaragua has the right to dredge the San Juan River to recover the flow of waters that existed in 1858, even if that affects the flow of water of other current recipients, such as the Colorado River.”The dispute, in fact, can be traced back more than 150 years to the 1858 Treaty on the Boundaries between Nicaragua and Costa Rica, which delimited the border along the Río San Juan. According to the treaty, while the southern bank of the river was declared Costa Rican territory, the river itself was given to Nicaragua. Costa Rica, however, was afforded the right to use the river for commerce.

Following disagreement over the interpretation of the treaty, the two countries agreed to have U.S. President Grover Cleveland arbitrate the dispute. In 1888, President Cleveland concluded (English and Spanish) that the border at the mouth of the Río San Juan lies at Punta de Castilla. Cleveland’s determination was later delineated more precisely in 1897 in the First award under the Convention between Costa Rica and Nicaragua of 8 April 1896 for the demarcation of the boundary between the two Republics.

Despite these rulings, the two countries continued to quarrel over both the location of the border between the two nations and the rights each enjoyed with respect to the use of the Río San Juan. In 2005, the dispute again came to the fore again when Costa Rica instituted proceedings in the ICJ [here] claiming that Nicaragua had unlawfully restricted Costa Rica’s right to navigate and access the Río San Juan by requiring passengers and tourists on Costa Rican vessels sailing on the river to obtain Nicaraguan visas. The ICJ ruled [here] against Nicaragua.

That decision, however, did not prevent Nicaragua from continuing to assert its claims to the river. In recent years, Nicaragua has been dredging older channels of the Río San Juan asserting that the border should follow the river as it flowed back in 1858 when the original Treaty on the Boundaries between Nicaragua and Costa Rica was adopted. Hence, the latest dispute. Interestingly enough, Nicaragua has also been working on a canal to link the Río San Juan and a nearby lagoon, which, at least one new source [Haaretz article] suggests is part of a larger, more ambitious plan by Venezuela, Iran and Nicaragua to create a “Nicaragua Canal” linking the Atlantic and Pacific oceans that would rival the existing Panama Canal.

Notwithstanding, if Costa Rica has its way, the ICJ will focus solely on Nicaragua’s incursion, both its military and engineering activities, on Costa Rica soil. Considering President Ortega’s statements and Nicaragua’s claim to the watercourse as it flowed back in the 1850s, though, Nicaragua will likely challenge Costa Rica’s claim to sovereignty over the territory in question. That challenge will depend, in part, on the interpretation of the relevant treaties and prior determinations. However, taking President Ortega’s statements at face value, international law pertaining to migrating rivers also may be relevant.

Under international law, avulsive changes to a watercourse channel (abrupt changes due to storms and other natural phenomena) do not move a river-based boundary. The international frontier remains in the original channel, even if it no longer carries any water. In other words, countries neither gain nor lose territory when a river marking an international boundary changes its course due to avulsion. In contrast, gradual and natural changes to a watercourse’s channel, such as those produced by natural river flow and scouring, can impact a nation’s geographic range. Under international law, accretive changes can legally increase or decrease a state’s territory, notwithstanding the geographic location of an original river-based boundary. In essence, countries can gain or lose territory when the channel of a river marking an international boundary migrates due to accretion. The river channel, in its new or modified channel, remains the official boundary.

So, is Nicaragua entitled to the river as it flowed in the 1850s? Might they be legally entitled to the land they allegedly invaded? If the ICJ determines that the Río San Juan constitutes the official border, and that the main channel of the river has migrated from its 1858 location, and if the Court concludes that the river moved as a result of avulsion, then Nicaragua’s may have an argument. That, however, will not be easy to establish. Over 150 years have passed since the 1858 treaty. While Nicaragua may be able to produce maps and charts evidencing the channel’s location in the 1850s, establishing that its migration was due solely or predominantly to avulsion is another matter. Over the past decade alone, the region has suffered a number of hurricanes and earthquakes, each of which could have caused the river to move. Yet, over the past 150 years, the region has also experienced more typical climatic condition that could have caused the river channel to migrate in a more gradual fashion. If the river did in fact move from its 1850s location, the reality is that this migration was due to both accretive and avulsive phenomena. Nicaragua certainly has its work cut out. Of course, Costa Rica will have to be ready to disprove Nicaragua’s claims.

You can find additional information on this dispute, including a variety of charts and maps, as well as a discussion of the role that Google Earth has played in stoking the controversy, at Ogle Earth.

Posted in International Water Law, Latin America, Transboundary Rivers, Water Conflicts | 4 Comments »

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.

Posted in Africa, International Water Law, Middle East, Transboundary Rivers, Water Conflicts | Comments Off

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