Governing Shared Watercourses Under Climatic Uncertainty: The Case of the Nile Basin

July 7th, 2021

The following essay by Mahemud Tekuya is a summary of his recently published article (under the same title) in Environmental Law Reporter. Mr. Mahemud is a Ph.D./JSD candidate in International Law and Legal Studies at McGeorge School of Law where his dissertation is supervised by Professor Stephen McCaffrey. He can be reached at mahmudeshetu@gmail.com.

Climate change is projected to have catastrophic impacts on the hydrological cycle. Water availability, quantity, and demand will all be affected by climate change. Even worse, these changes are coming at a time when the sustainability of water resources is severely strained by other non-climatic factors, such as population growth, economic development, and urbanization. All of these factors will decrease water supply or increase demand. Responding to such changes requires building flexibility and adaptability into watercourse treaties.

The GERD from Space
Image of the Grand Ethiopian Renaissance Dam from space. Source: NASA/METI/AIST/Japan Space Systems, and U.S./Japan ASTER Science Team, https://www.jpl.nasa.gov/images/grand-ethiopian-renaissance-dam

This article examines treaty flexibility and climate change adaptation in the context of the Nile Basin, with special emphasis on the Grand Ethiopian Renaissance Dam (GERD).  Ever since commencement of its construction in 2011, the GERD has been a point of serious contention between Ethiopia and its downstream neighbors—Egypt and Sudan.  For Ethiopia, the project is meant to offer a solution to its severe power problem, providing electricity access for an estimated 65 million Ethiopians. Egypt, on the other hand, relies on the Blue Nile for 60% of its freshwater, and maintains that the dam represents an existential threat, although it endorsed the importance of the dam in 2015 signing an agreement on the Declaration of Principles with Ethiopia and Sudan.  For its part, Sudan had to balance its concerns about water supply with the dam’s benefits, including a more regular flow of water, better siltation prevention, a reduction in evaporation, and cheaper electricity. In a historic break with its past practice of moving in lockstep with Egypt, and until recently, Sudan showed unwavering support for the GERD since 2012. In the past few months, however, it again firmed up on its opposition to the Dam.

To be sure, the dispute over the GERD is the focus of a voluminous body of academic literature. Legal scholars, political scientists and engineers, and hydrologic experts have exerted much effort during the last decade on the GERD dispute. Relatively little attention, however, has been directed to scrutinizing how the GERD should be governed in the face of climate change.  This is especially problematic as the ramifications of climate change on Nile water resources—in particular regarding future rainfall, river flow, and water availability—are bringing a new dimension to the GERD dispute.

Although there is no certainty in projections, most studies and climate change models are commonly predicting increases in average annual temperature, leading to greater losses of water due to evaporation. There is much less certainty in projections concerning future rainfall, river flow, and water availability. Regarding the latter issues, studies find contradictory results; some predict floods and increased runoff, while others predict water scarcity and possible droughts. It seems evident that proper governance of the GERD in the face of these uncertainties demands a response to two contradictory scenarios, either increase in water availability and flooding or water scarcity and drought; each of which requires opposite adaptation strategies. If climate change reduces the available water in the Nile Basin, competition for water between Ethiopia, Sudan, and Egypt will only intensify, possibly leading to conflict. If the available water resources increase due to climate change, this will create a need for new legal responses to flooding. In either case, flexible legal arrangements governing the GERD will be crucial to adapt to climate change.

Part I of the article introduces the mechanisms that can provide flexibility in watercourse treaties; it reviews the practice of various water-sharing countries and encapsulates the principal ways of building a climate-proof treaty. Part II analyzes treaty flexibility in the Nile Basin and probes the intrinsic capacity of the 1959 Nile Treaty between Egypt and Sudan, and the 2010 Cooperative Framework Agreement. Part III specifically addresses whether the Declaration of Principles contemplates a flexible legal arrangement for governing the GERD under climatic uncertainty. After answering in the affirmative, this part also proposes a flexible basin wide treaty capable of accommodating the ramifications of climate change, and an institutional mechanism for coordinated operation dams in the Nile Basin. Part IV provides concluding remarks, which call upon Nile Basin States and other water-sharing States to set aside their egoistic national interests and address the ramifications of climate change by developing flexible and climate-proof treaties.

The full article is available via the Environmental Law Reporter website.

AJIL Unbound Symposium on Interstate Disputes Over Water Rights

May 25th, 2021

This essay is written by Gabriel Eckstein, Professor of Law at Texas A&M University, director of the TAMU Law Program in Energy, Environmental, and Natural Resources Systems, and director of the International Water Law Project. He can be reached at gabrieleckstein [at] law.tamu.edu.

Disagreements over the management and allocation of transboundary freshwater resources have become increasingly prominent in international relations. Serious diplomatic tensions surround management of the Jordan, Mekong, Nile, Rio Grande, Silala, Syr Darya and Amu Darya, and Tigris and Euphrates rivers, to name just the most prominent examples among the world’s more than 300 shared watercourses. Nor is there any reason to think tensions will subside in the future.

In many parts of the world, demand for freshwater already exceeds accessible supplies (here). Water use globally has more than tripled since the 1950s, growing at more than double the rate of population growth over the same time period (here). Over the next thirty years, global demand is expected to increase by another 20 to 30 percent (here). These basic realities heighten the potential for disagreements and conflicts between riparian states.

Such disputes can escalate into larger regional conflicts. In the Aral Sea Basin, the discord between Tajikistan and Uzbekistan over the Rogun Dam has raised concerns over broader regional destabilization and even inter-state violence. Disagreement over the Xayaburi Hydropower Project (XHP) on the Mekong River, albeit contested with less rhetoric than the Rogun confrontation, has made many observers fear for the stability and the economic development of mainland Southeast Asia. And recent confrontations between Afghanistan and Iran have led to the outbreak of local violence and occasionally strained relations between the two states in an already fragile region. 

Despite mounting tensions among states, armed conflicts over transboundary freshwater have remained relatively limited to date. Yet growing water needs and dwindling supplies, climate change, shifting developmental and environmental priorities, and other concerns are straining cross-border hydro relations. Whether disagreements over shared freshwater resources will continue to be resolved peacefully will depend, in part, on the viability, durability, and flexibility of international law to prevent and resolve such disputes.

AJIL Unbound by Symposium, a publication of the American Society for International Law, recently commissioned a series of articles on Interstate Disputes Over Water Rights. The articles examine the role and relevance of international water law (IWL) for peacefully resolving disputes over transboundary freshwater resources. Taken together, the series provides an impressive breadth of approaches, from close examination of contemporary disputes over transboundary freshwater resources to the interpretation and application of specific IWL norms and principles. The series also features the perspectives of scholars from Africa, Asia, Europe, and North America.

The compilation, which is entirely open access, includes:

The diverse articles in this Symposium illustrate that the international law applicable to transboundary freshwater resources is at once expansive and focused.  While covering a broad array of topics and scenarios, from negotiation and data sharing to norm creation and litigation, it is also quite narrowly tailored to address the singular resource of freshwater in specific settings.  As developed as the regime may be, the essays make clear that it must continue to evolve and react to changing circumstances, such as climatic variability, growing demand, and increased knowledge about freshwater resources.

Water is one of the few true essential requirements for life. Thus, it is no surprise that disagreements among nations over this precious resource will continue and likely grow in the coming years.  Nevertheless, it is important to keep in mind that water management has more often been a source of cooperation than of conflict (here).  And while conflicts have certainly occurred, the vast majority of disputes have been resolved peaceably and in accordance with international law treaties and norms. Despite many challenges, international water law remains a vital and often effective guide for nations as they seek to resolve difficult and important water allocation disputes.

Sink or Swim: Alternatives for Unlocking the Grand Ethiopian Renaissance Dam Dispute

March 22nd, 2021

The following essay by Mahemud Tekuya is a summary of his recently published article (under the same title) in the Columbia Journal of Transnational Law. Mr. Mahemud is a Ph.D./JSD candidate in International Law and Legal Studies at McGeorge School of Law under the supervision of Professor Stephen McCaffrey. He can be reached at mahmudeshetu@gmail.com.

For the past five years, Ethiopia, Sudan, and Egypt have negotiated the filling and annual operation of the Grand Ethiopian Renaissance Dam (“GERD”), but failed to strike a deal acceptable to them all.   In August 2019, Egypt submitted proposals on the filling and operation of the dam and later effectively internationalized the GERD negotiations by involving the United States government and the World Bank as observers. The three states then held meetings with the United States Department of Treasury and the World Bank’s representatives in both Africa and Washington, D.C.

The Washington talks, which at first were progressing well, took a turn for the worse in January, resulting in a stalemate. The United States, evidently going beyond its status as an observer in the talks, proposed an agreement that Ethiopia considered adverse to its national interest. Ethiopia rejected the proposal and withdrew from the final meeting.  The U.S. Department of the Treasury requested that Ethiopia sign the proposed agreement and cautioned Ethiopia to refrain from testing and filling the GERD without an agreement with Egypt and Sudan.  Ethiopia expressed its disappointment with the statement and announced that it would proceed with filling the reservoir in parallel with the construction of the dam as agreed to in the Declaration of Principles (DoP) that the parties signed in March 2015.  Egypt, on the other hand, signed the United States proposal and vowed to protect its interests in the Nile River “by all available means.”

The Nile River Basin. Source: Nile Basin Initiative

Although disguised in talks over the GERD’s filling and operation, the current tension between Ethiopia and Egypt is principally related to their longstanding disagreement over the validity of the 1902 Anglo-Ethiopian Treaty, the 1929 Anglo-Egyptian Treaty, and the 1959 Nile Treaty between Egypt and Sudan (collectively, the “colonial Nile Waters Treaties”). This disagreement—which reached an apex during the negotiations of the Cooperative Framework Agreement (CFA)—is adversely adversely impacting the GERD negotiations.

This article analyzes the implications of the colonial Nile Waters Treaties for the ongoing GERD dispute between Ethiopia and Egypt.  The negotiations over the filling and operation of the GERD are the focus of a voluminous body of academic literature.  Political scientists have extensively studied the hydro-hegemonic implications of the GERD in their effort to determine “who gets how much [of the Nile] water, when, where, and why?”  Other scholars have addressed whether the GERD will be a source of conflict or a catalyst for cooperation. Engineers and hydrologic experts studied the GERD’s positive and adverse effects and proposed various scenarios for the filling and operation of the dam.  Legal scholars have explored some of the substantive issues concerning the legal developments in the GERD dispute, including the DoP.  What the academic discourse regarding the GERD lacks, however, is a detailed study analyzing the ramifications of the colonial Nile Waters Treaties on the GERD negotiations, the legitimacy of the United States’ role in the GERD negotiations, the U.S. Treasury statement vis-à-vis international law, and solutions for resolving the GERD dispute.

This article intends to fill these gaps in the scholastic discourse on the GERD negotiations. The first part of the article briefly introduces the disputes over the colonial Nile Water Treaties as well as the context for the fragmented legal regime that currently governs the Nile Basin.  It also addresses the interplay between the colonial Nile Waters Treaties and the DoP and submits that the latter does not abrogate the former.  Part II analyzes the implications of the Nile Water Treaties for the post-DoP talks on the filling and operation of the GERD.  It discusses the justifications for the involvement of the United States and the World Bank, and explores recent sticking points in the GERD talks. Part III examines whether—as the U.S. Treasury has suggested—a preliminary agreement is required to fill and test the GERD.  It further probes the legitimacy under international law of the United States’ involvement in the GERD. Part IV explores alternatives for resolving the GERD dispute, such as negotiation, mediation, and judicial settlement.  Finally, the article offers its concluding remarks and a call for Egypt, Ethiopia, and Sudan to, inter alia, stop approaching the Nile watercourse as a zero-sum game and cooperate for their mutual benefit.

The full article can be accessed here.

New Book on “International Law and Transboundary Aquifers” by Francesco Sindico

February 15th, 2021

The following essay is by Dr. Francesco Sindico, Co-Director of the Strathclyde Centre for Environmental Law and Governance (SCELG). Dr. Sindico can be reached at francesco.sindico [at] strath.ac.uk.

How many times does an academic write a book and then only other academics read it? How useful are such books? This is something that has troubled me throughout my entire career in academia and has haunted me in the preparation of my first book as sole author. How do I write something that will be of interest to people within my area of expertise – international law – but also to those working in different fields relevant for the topic of my book – hydrogeologists, engineers, etc…? Even more importantly, how do I write a book that goes beyond the walls of academia and entice a non-academic readership – policymakers and water professionals?

Dr. Francesco Sindico

The book “International Law and Transboundary Aquifers” takes on this multiple challenge by framing the narrative around a practical scenario. One where two countries acknowledge the existence of a transboundary aquifer that straddles both their borders, and where both nations decide that they wish to manage it together and explore whether there are any rules that they can rely upon to base their cooperation on. It is a book that builds on a twofold premise that is not always present in real life. First, there is a common scientific understanding that the two countries indeed share an aquifer. Second, there is political will on both sides of the border to develop a joint normative framework to govern the aquifer. Chapter 1 provides the reader with an introduction to the book and details the contours of the practical scenario that will be present throughout. You can access the introduction free of charge via the publisher’s website.

Once the scenario is laid out, the book takes the reader through a journey that seeks to answer two key questions. The first one is what are the rules, if any, that two countries willing to manage a transboundary aquifer can consider? The answer to this first question is spelled out throughout chapters 3 and 4, which highlight the emergence of an international law of transboundary aquifers and discuss its normative content. The reader will discover how such rules do exist and can be found in a plethora of existing international legal instruments. These include both substantive and procedural obligations and, while most can be found in the United Nations International Law Commission Draft Articles on the Law of Transboundary Aquifers, the legal mosaic is much more complex and includes the United Nations Watercourses Convention, the UN Economic Commission for Europe Water Convention and its Model Provisions on Transboundary Groundwaters. The second question present in the book is one that the two countries in the practical scenario are deemed to ask themselves once they figure out what rules are present. Are such rules just guidance, or do they “have” to follow them? In other words, is the content of the international law of transboundary aquifers, as spelled out in chapters 3 and 4, legally binding? Is it mere guidance that countries can follow if they so wish and can adapt to their own context and interests? Or does it amount to legally binding obligations that countries are obliged to comply leading to legal consequences in case of breach? Chapter 5 and 6 present an answer to this question by engaging in a discussion about the future of the international law of transboundary aquifers (chapter 5) and introducing the reader to the still relatively small number of transboundary aquifer specific agreements and arrangements (chapter 6). Chapter 5 is where the book embarks in its most difficult challenge: to explain and clarify to a wide range of readers (not just those versed in international law) in practical terms the relevance of defining an international legal obligation as customary international law. Since the latter requires a detailed analysis of state practice, chapter 6 takes the reader through a journey around the world to “see” the various transboundary aquifer agreements and arrangements to consider how they contribute to the crystallisation (or not) of customary international law in the field of international law of transboundary aquifers.

The book does not provide all the answers to policymakers interested in pursuing transboundary aquifer cooperation with their neighbours. However, it does provide a basis upon which discussions can begin and cooperation can be developed. It is my hope that this book can serve such a purpose. For this to happen it is important that the two premises underpinning the practical scenario presented in the book are met: knowledge about the aquifer in the first place, and political will to cooperate. Other books and other means will be useful to overcome these two complex hurdles. However, once they are overcome, then I hope policymakers and transboundary water managers will be interested in picking up my book as a means to clarify, to them and to their counterparts, the normative landscape that lies ahead. If even just one country that shares one of the 592 transboundary aquifers (and groundwater bodies) present in the world achieves some more clarity about the complex landscape ahead, I will feel that my book will have been a worthwhile effort beyond the sometimes too high walls of academia.

A virtual book launch with the author and other eminent speakers is scheduled on Wednesday 24 Match from 2 to 3 PM GMT.

The book can be accessed here.

The Ilisu Dam and its Impact on the Mesopotamian Marshes of Iraq: Implications for the Future Directions of International Water Law

January 27th, 2021

The following essay by Raquella Thaman is a summary of her recently published monograph (under the same title), which appears in Brill Research Perspectives in International Water Law.  Ms. Thaman is an attorney and teacher in California. She can be reached at r_thaman @ u.pacific.edu.

The fate of the Mesopotamian Marshes of Iraq provides us with a case study on the functional deficits of the existing body of international water law in managing conflict over transboundary watercourses. This monograph argues that international collaboration over transboundary watercourses is imperative for maintaining peace and stability and should force us into thinking of new ways to address these newly emerging and growing challenges in the field.

Water is a transient and finite resource. Moving through the hydrologic cycle, each molecule may find its way from a transboundary watercourse on one continent to a municipal water supply on another, and then back again. It is often said that every drop we drink has already been consumed by one life form or another.

The Hydrologic or Water Cycle.
Source: U.S. National Oceanic and Atmospheric Administration.

One of the more perilous side effects of climate change is its threat to the water supply of hundreds of millions of people. In many regions the seasonal absence of rain has historically been compensated for by meltwater from glaciers and winter snowpack across international borders in distant mountain ranges. When these glaciers disappear, so will the water supply during the dry season.

As these pressures increase, the need for effective legal regimes to address the sharing of transboundary watercourses likewise increases. In some cases, the existing law governing the utilization of this ephemeral resource has proven inadequate to prevent conflict and ensure access to water and its benefits for people and ecosystems no matter where they lie along the length of the watercourse.

The history and ecology of the Tigris-Euphrates Basin, and the issues surrounding Turkey’s recent impoundment of water behind the Ilisu Dam on the Tigris, provide an example highlighting such challenges. While the need for collaborative approaches to sharing transboundary watercourses is evident, barriers to such collaboration are complex and sometimes deeply entrenched. Additionally, the responsibility of the international community for helping at risk communities maintain access to adequate water supplies cannot be overlooked.

The first few chapters of the monograph set forth the context of the problem. Chapter one briefly introduces the hydrologic cycle and current state of Earth’s ecological systems underlying the need for new developments in international water law. The second chapter is an overview of the Tigris-Euphrates river basin including its hydro-geography, climate and early history of water use. The third chapter describes the significance of the Mesopotamian Marshes themselves as a harbinger for the well-being of the people of Iraq. The fourth chapter examines the water projects that affect the Tigris-Euphrates Basin including controversy surrounding Turkey’s most recent filling of the Ilisu dam and the flooding of Hasankeyf.

Map of Iraq with the Tigris and Euphrates River Basins.
Source: Library of Congress

Chapter five of the monograph outlines the law governing the Tigris-Euphrates Basin. The stance of the Tigris-Euphrates Basin states and their seeming embrace of outdated and conflicting approaches to resource allocation are examined.  Existing agreements between the states, both colonial era and post-WWII, and the application of the UN Watercourses Convention are then examined. Finally, other approaches to managing conflict over ecological conditions are examined including a brief analysis of the Rhine Salt Case and the human right to water recognized by the UN General Assembly in 2010.

Chapter six discusses the topic of collaborative water management using the illustrative example of the Senegal River Basin. Three examples of conflict over transboundary watercourses, one historical and two current, are then provided in order to illuminate some of the barriers to collaboration. The first is a nineteenth century dispute between the United States and Mexico over the water of the Rio Grande, which resulted in the production of the Harmon Doctrine. The second provides an example of upstream hydro-hegemony in an overview of the problems arising from China’s development of the upper Mekong River and its impact on those living in the lower Mekong Basin. The third example outlines the problem of downstream hydro-hegemony in the dispute between Ethiopia and Egypt, its downstream neighbor on the Nile, over the building of Ethiopia’s Grand Ethiopian Renaissance Dam.

In conclusion, the need for concerted global intervention to maintain the livability of Earth and increase resilience in the face of the rapidly changing availability of resources will be explored and the clear need for a unified collaborative approach to such intervention reiterated.

The monograph is dedicated to Ms. Fadia Daibes Murad (1966-2009); in recognition of the courage, rigor, and dynamic intellect with which she advocated both for fairness in access to water resources and for gender equity in Palestine and the Middle East.

You can access the monograph here.

The principle of prior notification – An instrument of implementing international water law and ensuring cooperative water diplomacy

November 23rd, 2020

The following essay by Dr. Susanne Schmeier, Associate Professor at IHE Delft, summarizes her recent article entitled “Prior notification of planned measures: A response to the no-harm dilemma?“, which appeared in the journal International Environmental Agreements: Politics, Law and Economics. Dr. Schmeier can be reached at s.schmeier [at] un-ihe.org.

Disagreements over whether a certain infrastructure scheme planned by one riparian country would have negative impacts on or even substantially harm another riparian state have occurred in numerous basins around the world. Examples include: the dispute between Mekong riparian states over Laos’ mainstream hydropower dams; the conflict between Ethiopia and Egypt over the Grand Ethiopian Renaissance Dam (GERD) on the Nile River and its potential implications for Egypt’s water security; the disagreement between India and Pakistan over a dam on the Kishenganga River, a tributary to the Indus; and the conflict between Tajikistan and downstream Uzbekistan over the Rogun Dam on the Vakhsh River, a tributary of the Amu Darya.

Construction site of the Xayaburi Dam on the Lower Mekong River in 2013. Photo courtesy of Susanne Schmeier.

The current surge in water infrastructure development – at least partly also driven by attempts to reach the Sustainable Development Goals (SDGs) and to produce clean energy in line with the commitments under the 2015 Paris Agreement – combined with increasing pressure of global climate change on water resources are likely to make such disagreements ever more common in the future. In some cases, such disagreements can grow into full-fledged conflicts, with negative repercussions on riparian states’ political and economic relations as well as regional stability as a whole.

The two key substantive principles of international water law – the principle of equitable and reasonable utilization and the principle of no significant harm – aim to guide such developments in shared basins in a way that prevents conflict and ensures sustainable development. Their translation from abstract international law principles, even if codified in specific instruments – such as the 1997 UN Watercourses Convention or the 1992 Helsinki Convention – into tangible mechanisms that riparian states implement and comply with has, however, been challenging.

This is where the procedural principle of prior notification (and often also consultation or even prior agreement) comes in. It aims at facilitating the process of implementing substantive international water law principles by providing guidance on how to do so in specific situations in which one riparian state aims to pursue a certain water infrastructure scheme that might potentially affect others. It does so by providing guidance to (potentially disagreeing) states on how to engage in pre-defined structure and cooperative exchange and negotiations over whether a project planned by one riparian state would indeed cause harm to another state, and whether that harm would be beyond the significance threshold and/or be in violation of the principle of equitable and reasonable utilization. This also helps keeping disagreements between the riparians contained, and allows for addressing disputes in a clearly defined manner, preventing escalation.

The principle of prior notification is thus not only an important principle of international water law that helps implement the two key substantive principles of the international water law framework, but also an important instrument of water diplomacy that contributes to the cooperative management of shared water resources. This is the key argument of this article, which was published as part of an entire Special Issue focusing on the current state of the principle of no significant harm in international water law.

The principle of prior notification has been enshrined in a number of basin-specific treaties, some of which pre-date global instruments that codified key principles of international water law. These include the 1964 Convention and Statutes relating to the Development of the Lake Chad Basin, the 1975 Statute of the River Uruguay, 1995 Mekong Agreement, the 2002 Framework Agreement for the Sava River Basin, and the 2003 Protocol on the Sustainable Development of the Lake Victoria Basin.

Dam near the city of Shiraz, Iran on the Rudkhaneye Khoshk (The Dry River). Photo courtesy of Susanne Schmeier.

Inspired by global and regional legal and political development, in recent years additional instruments have included the principle of prior notification in basin-specific arrangements. In Southern Africa, the 2000 Revised SADC Protocol on Shared Watercourses requires riparian states to shared watercourses in the region to implement the principle of prior notification. Accordingly, either basin treaties in the region have included the principle in their texts, or river basin organizations (RBOs) have developed subsequent instruments to ensure its implementation. In the Zambezi River Basin, for instance, Art. 16 of the 2004 Zambezi Agreement requires parties to notify other riparians of “any program, project or activity with regard to the Zambezi watercourse or which may adversely affect the watercourse or any other member state”. Shiraz iran river

In order to implement these commitments, the Zambezi Watercourse Commission developed Procedures for the Notification of Planned Measures. Likewise, the Permanent Okavango River Basin Water Commission developed Guidelines for Notification, Consultation and Negotiation despite the absence of any reference to prior notification (or any other substantive or procedural principle of international water law) in the 1994 Okavango Agreement. In other basins, such as the Congo, the Mekong and the Nile river basins, riparian states – often with the help of their basin organizations – have also developed subsequent legal or political documents that further specify notification processes (although not all have been adopted by riparian states or entered into force yet). 

Prior notification does not come without challenges. Often reflecting underlying disagreements between a project planning and potentially affected states, various issues of discontent have arisen in basins that have undergone prior notification processes in the past. These relate, first and foremost, to the question: which projects require prior notification? There tends to be different views, especially by the project planning state and potentially affected states, on which projects fall under notification requirements, sometimes becoming a source of disagreement itself. Other questions relate to issues of timing (when to notify), the information to be provided to other riparian states and/or the basin organization, the process for doing so and for determining whether a project is likely to lead to significant harm, and whether or not the project should be pursued.

However, when implemented in shared basins, in the case of specific and often contested infrastructure development plans, the principle has proven to be of considerable value in supporting substantive water law principles. It has also served to contain disagreements among riparian states and encourage cooperation and exchange of perspectives. Thus, beyond its value in international water law – where exact interpretation and implementation remains contested in various basins – the principle of prior notification has undeniably fulfilled an even more important function: it provides riparian states in a shared basin with a mechanism for addressing disagreement over some of the most conflictual matters of sharing transboundary basins and, thus, for dispute prevention and mitigation that align water law with water diplomacy aims and approaches.

You can access the article here.

The Agreement on the Guarani Aquifer enters into force: what changes now?

November 16th, 2020

The following essay is by Dr. Pilar Carolina Villar, Professor at Federal University of São Paulo (UNIFESP). She can be reached at pcvillar [at] gmail.com.

The Agreement on the Guarani Aquifer (Portuguese, Spanish, English unofficial), ratified by Argentina, Brazil, Paraguay, and Uruguay, will enter into force on November 26, 2020. After a lengthy waiting process, the countries have finally and officially determined that they can now resume their efforts to pursue cooperation. The Guarani Aquifer was the focus of a long cooperative process that began within the epistemic community in the 1990s. That focus was transferred to the four Guarani States and international organizations between 2000 and 2009, which culminated in August 2010 with the signing of the agreement in San Juan, Argentina.

Guarani Aquifer

The water community extensively celebrate this achievement for the following reasons: a) it was a specific agreement for a transboundary aquifer, which is rare in the global context; b) the agreement specifically referenced United Nations General Assembly Resolution 63/124 (2008) pertaining to the Draft Articles on the Law of Transboundary Aquifers, thereby emphasizing the importance of this document; c) it included the main principles of international water law reinforcing their applicability to aquifers; d) it was the first specific agreement for a transboundary aquifer in Latin America and could encourage the conclusion of other similar agreements; e) it represented the continuity of the cooperative process established between the countries within the scope of the Guarani Aquifer System Project; and f) it was an example of preventive diplomacy, without conflicts over the use of groundwater.

However, over the past decade, the initial optimism for this treaty to enter into force had cooled down. Article 21 determined that the agreement would enter “into force on the thirtieth day following the date of deposit of the fourth instrument of ratification” with the Federative Republic of Brazil, which was assigned as the custodian of the agreement and the instruments of ratification. Argentina and Uruguay ratified the treaty by enacting Law No. 26,780/2012 and Law No. 18,913/2012, respectively. Brazil recognized it through Legislative Decree No. 52/2017 and Paraguay through Law No. 6037/2018. However, Paraguay’s instrument of ratification was not deposited with Brazil until October 2020.

The entry into force of this agreement allows the promised innovation initiated in 2010 to be implemented; however, the delay in the process raises the question of when and if this cooperative process will come to fruition. The agreement, which focuses on the transboundary water resources of the Guarani Aquifer System (SAG), represents a flexible cooperation tool and obligates the four aquifer States to manage them in accordance with the rules of international law. Table 1 shows the main characteristics of the agreement.

Table 1. Key elements of the Guarani Aquifer Agreement

The entry into force of the agreement will allow the Guarani States to deepen the cooperation process presupposing the following steps: a) creation of a commission for the Guarani aquifer (art. 15); b) defining the arbitration procedure for settling disputes by issuing an Additional Protocol (art. 19); c) implementing groundwater cooperation programs (art. 12) and d) identifying critical areas, especially in border areas where the flow is transboundary. Of these actions, the most urgent undoubtedly is the creation of the commission, which is responsible for coordinating cooperation in compliance with the principles and objectives of the agreement. Without the creation of the commission with a statute to define its structure and powers, the agreement will have limited effectiveness in the regional context.

The realization of the international project Implementation of the Guarani Aquifer Strategic Action Program: Enabling Actions – with the participation of the four countries, the Global Environmental Facility as financier, and UNESCO as the executive agency, and with technical support from the Regional Center for Groundwater Management (known as CeReGAS) – can encourage the Guarani States to implement the agreement and establish the commission.

Implementing International Watercourses Law through the WEF Nexus and SDGs: an Integrated Approach Illustrated in the Zambezi River Basin

September 28th, 2020

The following essay by Dr. Zeray Yihdego and Julie Gibson is a summary of their recently published monograph (under the same title), which appears in Vol. 5(3) 2020, pp. 3-90 of Brill Research Perspectives in International Water Law.  Dr. Yihdego is Professor and Chair of Public International Law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego@abdn.ac.uk. Ms. Gibson is a Doctoral Researcher with the Strathclyde Centre for Environmental Law and Governance, Strathclyde School of Law. She can be reached at julie.gibson@abdn.ac.uk.

Over the past few decades, in an attempt to balance the competing uses and trade-offs on international watercourses, a number of water resources management paradigms have been developed. From Integrated Water Resource Management (IWRM) and water security to nature-based solutions and the Water-Energy-Food (WEF) Nexus, each framework has applied a new lens through which to view the governance of transboundary resources. These frameworks have undoubtedly proved useful, each approaching water governance from a different perspective allowing both synergies and gaps across multiple sectors and uses.  However, in many cases, each of these frameworks function within their own body of research and fail to identify overlaps and duplication of efforts. And each one attempts to ‘reinvent the wheel’ rather than focussing on long-term solutions and taking a holistic perspective of the frameworks already in existence.

Existing largely separated from these policy sphere frameworks is International Watercourses Law (IWL). IWL provides a number of key principles including equitable and reasonable use and the duty to prevent significant harm, which have become the foundation of many water governance regimes. Yet, in many ways, IWL provides only a broad framework for States to follow and is not sufficient to systematically consider the trade-offs of water use across multiple sectors such as energy and food.

Both areas – of policy and of law – bring clear benefits. Policy frameworks often provide more ambitious targets, which may be more tangible than IWL, as can be seen within the Sustainable Development Goals (SDGs). They may also be more industry/business focused, as is the case with the WEF nexus and can look for more scientific solutions to transboundary water governance. In this sense, policy frameworks can, therefore, fill some of the gaps which exist within the body of IWL. But the use of certain policy frameworks may be fleeting. Development agendas expire and notions of water security or nature-based solutions fall in and out of fashion. Thus, by linking to IWL, the temporal scope of these agendas can also be lengthened, underpinned by a legal framework, thereby demonstrates only one of the benefits of integration.

This monograph tests this theory of integration by viewing IWL, the WEF Nexus and the Sustainable Development Goals in an integrated manner termed the Law, Nexus Goals (LNG) approach. It explores the extent to which the WEF Nexus and the SDGs can support a progressive, realistic and balanced interpretation of the core principles of IWL and the cardinal rule of equitable and reasonable use in particular. Specifically, it asks and demonstrates how the SDGs and WEF Nexus could be mutually supportive in tackling the tension between competing uses and trade-offs between sectors.

This LNG approach is applied to the case study of the Zambezi River Basin, an extremely complex and fast-developing watercourse with a strong history of cooperation. Our findings demonstrate that even where sound IWL frameworks and cooperative processes exist, this does not guarantee a focused, measurable and sustainable outcome that is capable of addressing tensions among riparian and competing water uses in all cases. A more integrated and holistic framework could go some way to developing a more comprehensive and progressive water governance approach within transboundary river basins.

Zambezi River (courtesy of Sean Peter)

The monograph presents a perspective of integrated governance, bridging both law and policy. It illustrates the complexities of managing shared water resources that are subject to multiple uses – as illustrated through the Zambezi – and demonstrates how making the most of existing frameworks, rather than forming new ones, could be a positive driver for strengthened IWL implementation.

The monograph is derived from research conducted under the €5.5M four-year EU Horizon 2020 funded DAFNE project, which concerns the promotion of integrated and adaptive water resources management. The project explicitly addresses the WEF Nexus and aims to promote a sustainable economy in regions where new infrastructure and expanding agriculture has to be balanced with social, economic and environmental needs. The project takes a multi- and interdisciplinary approach to the formation of a decision analytical framework for participatory and integrated planning to allow the evaluation of decisions based on social, economic and environmental needs, thereby reflecting sustainable development. The monograph, therefore, derives its perspectives from the interdisciplinarity within the project.

You can access the monograph here.

The Geneva List of Principles of the Protection of Water Infrastructure: An Assessment and the Way Forward

August 17th, 2020

The following essay by Dr. Mara Tignino and Ms. Öykü Irmakkesen is a summary of their recently published monograph (under the same title), which appears in Vol. 5(2) 2020, pp. 3-104 of Brill Research Perspectives in International Water Law.  Dr. Tignino is Lead Legal Specialist at the Platform for International Water Law at the Geneva Water Hub and Reader at the Faculty of Law and the Institute for Environmental Sciences at the University of Geneva. She can be reached at mara.tignino@unige.ch. Ms. Irmakkesen is Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights and former Researcher at the Geneva Water Hub. She can be reached at oeykue.irmakkesen@unige.ch.

Water tower in Vukovar, Croatia, damaged during the Battle of Vukovar in 1991

Water infrastructures have been objects of attacks and weaponized in several armed conflicts throughout history. While such acts are invariably condemned by the international community, a thorough study of the legal framework on the protection of water infrastructure had until now been missing. However, as demonstrated in the monograph, protection of water infrastructure is essential to the protection of the environment and civilians during armed conflicts. Damaging or destroying these infrastructures can lead to the contamination of water resources and a disruption in the vital services they provide including water for personal and domestic uses, water for irrigation, and water for energy supplies.

The monograph starts with an introduction, which outlines the scale of the problems caused by attacks against and the weaponization of water infrastructure. This is followed by sections on the background and methodology of the Geneva List of Principles on the Protection of Water Infrastructure. Lastly, preliminary remarks on the List’s scope and content are provided.

This monograph is based on a project carried out by the Geneva Water Hub and its Platform for International Water Law. The project was triggered by the final report of the Global High-Level Panel on Water and Peace, A Matter of Survival. The report’s second chapter, entitled ‘Into the Abyss: Water in Armed Conflicts’, contained several recommendations, mainly addressed to the UN Security Council, including strengthening the respect for and implementation of international humanitarian law for better protection of water resources.

The main section of the monograph is the Geneva List of Principles on the Protection of Water Infrastructure and its commentary. The Geneva List includes principles applicable in peacetime, during armed conflicts and in post-conflict situations. These principles bring together rules regulating the protection of water infrastructure under international humanitarian law, international human rights law, international environmental law and international water law. Moreover, some principles also reflect recommendations that go beyond the existing law, which are largely built upon the practice of parties to past and current conflicts and well-recognized soft law documents, such as the Berlin and Madrid Rules of the International Law Association.

Certain types of water infrastructure are specially protected under international humanitarian law. For example, drinking water installations and irrigation works are protected under a special regime as objects indispensable to the survival of the civilian population (Article 54 of the First Additional Protocol and Article 14 of the Second Additional Protocol to the four Geneva Conventions of 12 August 1949 relating to the protection of victims of international and non-international armed conflicts, respectively). Likewise, dams are also accorded special protection as they are considered to contain dangerous forces (Article 56 of the First Additional Protocol and Article 15 of the Second Additional Protocol to the Geneva Conventions). Additionally, all water infrastructures are protected by the general rules on the conduct of hostilities as long as they remain civilian objects. For example, the principle of proportionality prohibits launching an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b) of the First Additional Protocol to the Geneva Conventions). This principle is particularly important in urban warfare contexts where the interconnectedness of infrastructure results in knock-on effects of the damaging or destruction of only one component. Such reverberating effects, which may not take place in the immediate aftermath or vicinity of the attacks but are foreseeable, must be taken into account by the parties to conflicts in their proportionality assessments.

Finally, the monograph concludes with a short section that delineates the perspectives of the authors on the possible challenges ahead, for example, due to climate change and proliferation of cyber warfare. This part also sets forth next steps to be taken based on the Geneva List of Principles by the Geneva Water Hub and explores the idea of creating a mechanism to monitor damages to water infrastructure during armed conflicts.

The writing of the Geneva List of Principles coincided with several related projects by different actors. Notably, the International Law Commission has provisionally adopted the draft principles on the protection of the environment in relation to armed conflict on first reading in 2019. The International Committee of the Red Cross has been updating its 1994 Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict and is expected the publish the new guidelines by the end of 2020. During the drafting and publication process of the Geneva List of Principles, the Geneva Water Hub also cooperated with UNICEF, which launched its Water Under Fire campaign in March 2019. These initiatives highlight the increasing interest in revisiting rules and issues relating to the protection of water and the environment, also with the aim of enhancing the protection of civilians from the effects of armed conflicts.

You can access the monograph here.

Democratic water governance to achieve a human right to water

July 28th, 2020

This essay is written by Gabriel Eckstein, Professor of Law at Texas A&M University, director of the TAMU Law Program in Energy, Environmental, and Natural Resources Systems, and director of the International Water Law Project. He can be reached at gabrieleckstein [at] law.tamu.edu.

Ten years ago, the global community formally recognized a universal human right to water in a United Nations resolution. While a major milestone in the effort to secure adequate freshwater for all people globally, much remains to be done.

The unravelling COVID-19 pandemic underscores the inequities and gaps in access to clean water that continue to plague communities worldwide. More importantly, it highlights the reality that while articulation and even codification of the right to water is crucial for ensuring human health and life, fulfillment of that right requires a foundation of strong democratic governance.

Pronouncing the right

The call for formal recognition of a human right to water can be traced back, at least, to 1977 and the UN Water Conference held in Mar del Plata, Argentina. The Action Plan from that event declared that “All peoples, whatever their stage of development and social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs.” Building on that foundation, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and the 1989 Convention on the Rights of the Child were the first global treaties to formally and explicitly recognize a right to water in their text.

Over the next few decades, various UN and other conferences and pronouncements expanded on the right and its scope and application. Most notable was the 2002 General Comment No. 15 issued by the UN Economic and Social Council, which provided guidelines for interpreting the right to water, framing it within the right to an adequate standard of living and the right to the highest attainable standard of health. In its opening article, the Comment provides that “The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.”

Finally, the 2010 UN Resolution, as well as the 2015 UN Resolution that explicitly recognized the human right to sanitation as a distinct right, capped the series of formal recognitions and gave official notice that, moving forward, the global community acknowledges and intends to respect the existence of these critical human rights.

Ongoing shortfall

Despite these noble and meaningful achievements, progress in attaining the goals that these rights envision has been challenging. In 2019, the World Health Organization reported that 785 million people around the world continue to lack even the most basic drinking-water services, and at least 2 billion people still use a drinking water source contaminated with feces.

Of particular relevance to the current COVID-19 pandemic, the chief executive of the NGO WaterAid recently noted that three quarters of households in developing countries worldwide did not have access to infrastructure or facilities where handwashing was available, and that one third of healthcare facilities in these countries lacked access to clean water on site.

While poorer nations tend to bear the brunt of inadequate access to freshwater, these shortfalls also plague the developed world. A 2020 report by the US Water Alliance asserted that in the United States, more than two million people lack running water and basic indoor plumbing; a 2018 report by Food and Water Watch found that 15 million Americans experienced a water shutoff in 2016. Similarly, the World Health Organization Regional Office for Europe reported that 16 million people across the region have no access to clean drinking-water, and more than 31 million lack adequate sanitation services.

Clearly, we are not living up to the promises and expectations of a universal human right to water. Even when recognizing that such a right can be functionally implemented only at the domestic level, and on a country-by-country basis, the gaps in fulfilling the human right to water across the globe remain vast.

Democracy is key

The main challenge to realizing any human right is in its implementation at the domestic and local levels. The human right to water (as is the right to sanitation) is particularly susceptible to the vagaries of national and local politics, as well as the injustices and disparities that result from classism, racism, sexism, religious prejudice, and other forms of discrimination and oppression. Moreover, while the 2002 General Comment No. 15 asserted that the human right to water “is a prerequisite for the realization of other human rights,” that right itself is highly dependent on the fulfillment of other rights and a functioning government with strong democratic ideals.

Ensuring access to water to all people necessarily implicates investments in infrastructure, tariffs or other resources to cover costs, allocation determinations, and ultimately prioritization decisions. As a result, the right to water functions at the domestic level as a social justice issue, and more precisely, a water justice issue. It is built on notions of fairness (acting without bias), equity (acting to meet needs), accessibility (ensuring the ability to acquire), and participation (involvement in decision-making). Without a strong water justice foundation, the right to water remains aspirational.

Furthermore, the right to water is highly dependent on a regime that ensures and enforces other fundamental human rights, most notably, expression, assembly, non-discrimination, and dignity. As a matter of history, this occurs where governance regimes respect the democratic process. Together, water justice and basic human rights serve as prerequisites and actually constitute the necessary tools for the realization of a viable and enforceable human right to water.

Beyond a paper right

While the phrase “water is life” may have become a cliché, it remains a truism. Yet, the fulfilment of its logical conclusion – that all people must have access to freshwater – remains far from reality. This has become brutally evident in the context of the COVID-19 pandemic where millions of people worldwide cannot even wash their hands to maintain their health, let alone drink potable water to maintain their lives.

The right to water, however, is intertwined with and dependent on democratic governance. Without a foundation that recognizes water as a justice issue and ensures other basic human rights, the right to water will simply remain a paper right.

This essay was written by Gabriel Eckstein for the Global Water Forum to celebrate the adoption of “the human right to water and sanitation” by the General Assembly of the United Nations on 28 July 2010. In addition to appearing here on the International Water Law Project, you can also find the essay on the Water Justice Hub website.

Main image by Sasin Tipchai from Pixabay