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

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.

Should we care whether the UN Watercourses Convention enters into force? – Part II

July 22nd, 2012

The following post (Part II of II), by Dr. Alistair Rieu-Clarke (a.rieuclarke [at] dundee.ac.uk), IHP-HELP Centre for Water Law, Policy & Science (under the auspices of UNESCO) and Ms. Flavia Loures (flavia.loures [at] wwfus.org), WWF, continues the debate initiated in Part I  concerning the importance of the entry into force of the UN Watercourses Convention for the codification and development of international water law.

Once in force, the 1997 UN Watercourses Convention (UNWC) would be better equipped to deal with the issue of fragmentation. To date, the legal architecture for international watercourses remains weak. While there are over 400 basin-specific agreements, 60 percent of international watercourses lack cooperative management arrangements, and the majority of agreements tend to be bilateral, even where more than two states share a particular watercourse (see article by Zawahri & Mitchell). Finally, many watercourse agreements fail to address key issues in transboundary cooperation, such as emergency situations, data-sharing, consultation and negotiation procedures, or dispute settlement. Such arrangements are ill-equipped to deal with current and future challenges and threats concerning the world’s finite freshwater supplies, such as population growth, climate change, ecosystem degradation, water insecurity, and so forth. Moreover, since 1997, despite the Convention having some influence – as noted in Part I – there has been a significant decline in the adoption rate of basin and sub-basin agreements, notwithstanding increased calls for stronger governance arrangements.

A global framework agreement, if in force, could play an important role in addressing such fragmentation by supplementing and strengthening the legal architecture where i) no basin agreement exists; ii) not all basin states are party to an existing agreement; and/or iii) an existing agreement only partially covers matters addressed by the UNWC.  It was in this sense that the Nordic Counties summed up the value of a framework agreement during the Convention’s drafting process, stating that it, ‘provides a good basis for further negotiations. It leaves the specific rules to be applied to individual watercourses to be set out in agreements between the States concerned, as has been the current practices’ (see replies of Governments to the Commission’s questionnaire at A/CN.4/447, 1993).

At the regional level, the 1992 UNECE Water Convention and the SADC Protocol on Shared Watercourses illustrate the role of framework instruments in addressing gaps and failings in basin and sub-basin agreements and, as discussed below, in supporting and facilitating the application, interpretation and implementation of those instruments. However, the aforementioned convention and protocol are the only examples of existing regional instruments. Therefore, the need for a global framework remains. Besides, regional instruments may fail to include all states within a certain international watercourse. Such is the case with the SADC Protocol as compared to the Congo and Nile basins.

The UNWC may also address fragmentation at the horizontal level. Entry into force would enable synergies to be developed between the Convention and other water-related multilateral environmental agreements, such as those dealing with climate change, biodiversity, wetlands, desertification and so forth (see report by Brels, Coates and Loures).

In addition, an effective UNWC would serve as a solid and widely accepted basis for the development of treaty law at the global level. In this regard, it is worth asking whether the ILC Draft Articles on Transboundary Aquifers would have been different if the Convention had already entered into force? Would the draft articles have ensured better integration between general international water law and the principles and rules applying specifically to shared groundwaters? Would countries be more open to considering the draft articles as a basis for a future groundwater protocol to the UNWC, rather than for a separate, independent convention that could possibly aggravate the issues of fragmentation and treaty congestion? (see article by Loures and Dellapenna).

From a political standpoint, formal and widespread support for the UNWC would send a definitive and clear message that, as codified in the Convention, international law requires states to cooperate over international watercourses, lakes and aquifers, including, where appropriate, through joint planning and actions, and within the framework of equitable and reasonable use and participation (see UNWC, Articles 5, 8, 20).

For lawyers, this may seem redundant, as the duty to cooperate is widely regarded as part of customary international water law. However, in the context of global water negotiations, an effective and widely endorsed UNWC could make a major difference. For example, during negotiations at the 6th World Water Forum, one state raised the issue that the UNWC cannot even be referred to as a “convention”, because it is not yet in force. During the development of the ILC Draft Articles on Transboundary Aquifers, another state pointed out the need to avoid linking that instrument to the UNWC, because the latter is not in force and, therefore, may not reflect the status of customary law. More recently, the “water and sanitation” section of the Rio document is permeated by a nationalistic tone: it refers to “actions within the respective national boundaries” to protect ecosystems, while never mentioning transboundary water issues, watercourse agreements or the International Year on Water Cooperation (see UN Resolution 65/154). For those working on these issues, it was disheartening to follow the interstate discussions that preceded the adoption of that document, and which led to the deletion of the paragraph dealing with water cooperation at various levels.

Arguably, if the UNWC had been in force, states would have less room to manoeuvre for downplaying the duty of watercourse states to cooperate and the role of international law in this context, leaving more time for discussions on substantive issues. This can be exemplified by the good progress made on oceans in Rio within the framework of international law, as reflected in UNCLOS. Hence, entry into force of the Convention would provide the UN and other international organisations with a strong legal mandate by which to support and advance transboundary water issues at the global level – a mandate that is currently lacking (see WWF/DfID Report).

Closely related to the political considerations noted above, entry into force may also help assist a key factor inhibiting the effectiveness of the Convention, namely awareness. Our experience, based on stakeholder interviews and workshops, demonstrates that levels of understanding and awareness of the UNWC are relatively low amongst key government officials in places such as Central America, West Africa and South-East Asia. Arguably, therefore, because the Convention is not yet in force, it has not been as influential as it could and should be, simply because governments have prioritized treaties that have already entered into force and to which they are bound.

In conclusion, should we care if the Convention enters into force? Conversely, we might ask, given the above, whether we could actually afford not to bother with its ratification process.

Should we care whether the UN Watercourses Convention enters into force? – Part I

July 22nd, 2012

The following post (Part I of II), by Dr. Alistair Rieu-Clarke (a.rieuclarke [at] dundee.ac.uk), IHP-HELP Centre for Water Law, Policy & Science (under the auspices of UNESCO) and Ms. Flavia Loures (flavia.loures [at] wwfus.org), WWF, is based on experiences gained through a range of activities conducted as part of the UN Watercourses Convention Global Initiative.

During Rio+20, UK and Irish representatives announced that their respective Governments would accede to the 1997 UN Watercourses Convention (UNWC) to ensure that the world’s 276 international watercourses were governed in an equitable and sustainable manner. These announcements follow a growing wave of support for the Convention’s entry into force, which has recently seen Luxembourg become the 26th contracting state, followed by Benin only a few weeks ago. Moreover, various global and regional institutions have urged States to accede to the Convention, including the European Commission (see Resolution 2012/2552(RSP)), the Niger Basin Authority  (see 2011 Bamako Declaration) and African Basin Organisations (see 2011 Bangkok Declaration).

Anticipation of the Convention’s imminent entry into force has also prompted the question, ‘what next’? In this regard, at the 6th World Water Forum (Marseille, March 2012), France offered to host the 1st meeting of the parties, and UN organisations, including the UN Economic Commission for Europe (UNECE), UNESCO and UNEP, were identified as potential candidates for ‘housing’ the Convention – whatever form that might take.

As momentum finally gathers around the UNWC – a keystone global legal instrument adopted over 15 years ago – the question at the forefront of discussions is, ‘why should we care’? Would entry into force of a global framework instrument on the law of the non-navigational uses of international watercourses really make a difference?

From the legal standpoint, a primary driver behind the UNWC was the codification and progressive development of international water law, which, in 1970, was recognised by the UN General Assembly as, ‘still based in part on general principles and rules of customary law’ (see  UN General Assembly Resolution 2669(XXV)). The value of the Convention was, therefore, to provide greater detail, clarity and certainty as to what was, and what should be, the applicable international law pertaining to the non-navigational uses of international watercourses.

Simply through its adoption by an overwhelming majority of UN Member States – after an extensive process of treaty drafting and negotiation – the Convention presents an authoritative statement of customary international law. In the Gabĉíkovo-Nagymaros case, for instance, the International Court of Justice made explicit reference to the UNWC only months after its adoption by the General Assembly. Additionally, numerous basin and sub-basin agreements adopted after 1997 have been influenced by the Convention: in the case of the SADC Protocol on Shared Watercourses, many of the key provisions were taken from the Convention almost verbatim.

Although the UNWC already enjoys an influential role, its current status leaves open to debate which of its provisions reflect existing or emerging customary law, as well as the content of those principles widely accepted as custom. If the Convention were to enter into force, it is likely to trigger a snowball effect, leading to wider ratification by a representative body of states. At that point, all its provisions would be considered as reflecting customary international law and thus become potentially binding even on non-parties.  Entry into force would also consolidate the content of the principles of equitable and reasonable use and harm prevention, as well as their relationship, as codified under the UNWC.

In this sense, entry into force and widespread ratification are necessary to ensure the successful completion of the task entrusted to the International Law Commission: that of codifying, clarifying and progressively developing the law of the non-navigational uses of international watercourses, with a view to offering a clearer, more stable framework for transboundary water cooperation at the global level.

It was for this reason that, during the Convention’s drafting process, the Nordic Countries cautioned that, ‘this [framework] approach should not lead solely to producing recommendations’ (see replies of Governments to the Commission’s questionnaire at A/CN.4/447, 1993). The statement alludes to the importance of a legally binding framework instrument. A legally binding text holds greater potential for shaping state practice at the basin level. The ratification process itself normally requires the government to conduct an extensive consultation process with a wide range of national stakeholders. Ratification also tends to provide a stronger assurance that the rules and principles contained within that instrument will be adhered to not only by the government in power, but also by its successors.

That said, an effective and widely endorsed UNWC, on its own, might have limited impact. For the Convention to fully meet its potential in supporting and facilitating transboundary water cooperation at all levels, the appropriate institutional arrangements must be in place by which to deepen knowledge and understanding of the Convention and its inherent rules, principles and aspirations. Evidence of the need and value of such arrangements can be seen in the case of the UNECE Water Convention. Through its meeting of the parties, secretariat, work programmes, implementation projects and so forth, the UNECE Water Convention has played an effective role across Europe and neighbouring regions in supporting implementation of basin and sub-basin arrangements. Exploring synergies between the UNECE Water Convention and the UNWC, therefore, provides considerable promise in ascertaining how ‘multi-basin’ treaty regimes can make a difference at the basin, sub-basin and national levels. In addition to global institutional mechanisms supporting the convention, such discussions should include the role of river basin and regional integration organizations as hubs for coordinating and monitoring the UNWC’s future implementation.

See Part II of this post here.

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

July 6th, 2012

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

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

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

Luxembourg Ratifies 1997 Watercourses Convention

June 12th, 2012

On 8 June 2012, Luxembourg became the 26th nation to ratify or otherwise become a full party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses. The other 25 states include: Burkina Faso, Denmark, Finland, France, Germany, Greece, Guinea-Bissau, Hungary, Iraq, Jordan, Lebanon, Libya, Morocco, Namibia, The Netherlands, Nigeria, Norway, Portugal, Qatar, South Africa, Spain, Sweden, Syria, Tunisia, and Uzbekistan.  In addition four nations have signed the treaty but have yet to become full ratifying members: Côte d’Ivoire, Paraguay, Venezuela, and Yemen. You can find the updated status of the Convention here.

Of the 26 ratifications, two occured in 2012 (so far), three in 2011, three in 2010, and two in 2009. If the present rate of ratifications continue, the Convention could come into force within three or so years. The Convention requires 35 parties for it to achieve that status.

While it is probably still too early to identify any definitive trends, it is at least curious that of the 26 states that have ratified the Convention, twenty are either from Africa (8) or Europe (12). Five others are from the non-African Middle East region, albeit its also true that eight are MENA nations. Only one ratifying state is found in Asia (Central Asia to be precise) and none come from the American hemisphere.

What this might mean is still unclear. But the geographic distribution of the ratifications could suggest a geographic bias or disfavor for the Convention. As nations continue to ratify the instrument (and I do expect more nations to do so), it will be interesting to see whether this trend continues. Moreover, it will be interesting to see what this might mean if and when the Convention comes into force.

The Future of Africa’s Water Security

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.

 

25 and Counting: Another Ratification for the 1997 UN Watercourses Convention

May 3rd, 2012

For those of you keeping a count, the 1997 Watercourses Convention now enjoys 25 parties [see Status of the Convention here]. On 30 April 2012, Denmark submitted its notice of accession to the Convention.  This comes on the heels of 6 other ratifications over the past 2 years: Burkina Faso, France, and Morocco in 2011; and Greece, Guinea-Bissau, and Nigeria in 2010. The other parties to the Convention include:  Finland, Germany, Hungary, Iraq, Jordan, Lebanon, Libya, Namibia, The Netherlands, Norway, Portugal, Qatar, South Africa, Spain, Sweden, Syria, Tunisia, and Uzbekistan. In addition, five nations have signed but not yet ratified the Convention: Côte d’Ivoire, Luxembourg, Paraguay, Venezuela, and Yemen.

Denmark is the first nation in 2012 to ratify the instrument. But it may not be the last. In 2011, Benin’s parliament authorized its government to ratify the treaty. Other countries also are considering ratification. If this rate continues, the treaty may enter in force in the next few years. Under Article 36(1) of the Convention, the treaty will become binding on all ratifying parties ninety days following the 35th ratification. That day may be coming soon.

Incidentally, it is interesting (but not surprising) that when it filed its notice of accession, Denmark also submitted a notice excluding from its accession application of the Convention to the Faroe Islands and Greenland [see notice here].

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

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.

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

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.

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

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.