Archive for the ‘Central America’ Category

The Ocotepeque – Citalá Statement of Intent: a first step towards transboundary aquifer cooperation in Central America?

Friday, November 1st, 2019

The following essay is by Dr. Francesco Sindico, Co-Director of the Strathclyde Centre for Environmental Law and Governance (SCELG). Dr. Sindico collaborated in 2015 and 2016 with the GGRETA project Trifinio Aquifer case study contributing to workshops on the emerging international law of transboundary aquifers in San Salvador, El Salvador. He would like to thank Marina Rubio and Stefano Burchi for comments on this short piece. This blog is also available as a SCELG Policy Brief here. Dr. Sindico can be reached at francesco.sindico [at] strath.ac.uk.

On 22 February 2019 the Ocotepeque – Citalá Statement of Intent (Ocotepeque – Citalá SoI) – was signed (the official title in Spanish is “Carta de Intención entre municipalidades, juntas de agua, instituciones nacionales y regionales para la gobernanza integrada del acuífero Ocotepeque – Citalá compartido por El Salvador y Honduras en la región del Trifinio”). If only for the scarcity of agreements on transboundary aquifers (TBA), the Ocotepeque – Citalá SoI is to be celebrated, although it should not be considered as a formal legal instrument and should not be added to the very short list of TBA agreements in existence globally. Nevertheless, the document is interesting in a number of ways, and not just because it adds to the very scarce state practice in the field of TBA management. This short piece provides a brief overview of the main provisions of the Ocotepeque – Citalá SoI and focuses on a specific aspect: its inclusiveness when it comes to parties participating in the governance of the TBA.

The Ocotepeque – Citalá Statement of Intent and the GGRETA Project

The Ocotepeque – Citalá SoI is one of the results of the Governance of Groundwater Resources in Transboundary Aquifers (GGRETA) project funded by the Swiss Development and Cooperation Agency and implemented by UNESCO-International Hydrological Programme in collaboration with the International Union for the Conservation of Nature. The project was key in providing clarity as to the nature and extent of aquifers in the Trifinio region, which includes parts of Guatemala, El Salvador and Honduras. The project was also essential in bringing together a wide array of stakeholders interested in surface water and groundwater management in the region. Finally, the project also provided local stakeholders with capacity building on the emerging international legal frameworks applicable to transboundary aquifers.

While the GGRETA project is to be celebrated and served as a catalyst for this arrangement, the Ocotepeque – Citalá SoI is the result of the will of people living over the transboundary aquifer and has been shaped by local, national and regional actors.

An overview of the Ocotepeque – Citalá Statement of Intent

The Ocotepeque – Citalá SoI has a preamble, 6 main statements, and a final section that concludes the text. The preamble references sovereignty, a sticking point in the debate over the international law of TBAs, and to water as a vital human need and its importance for indigenous people. The preamble also focuses on climate change and on the need to have a reliable database as a precursor for any solid cooperation. It then makes clear references to the emerging international law of transboundary aquifers and UNGA Resolution 63/124 and to the Sustainable Development Goals, with a specific mention of SDG 6.5.

Moving to the substance of the text, the key intent of the signatories is to establish in future, and when appropriate, a TBA Binational Management Committee, and to nest it in the existing tri-national institutional framework for the implementation of the Plan Trifinio (Guatemala, in addition to El Salvador and Honduras, is also a member of this framework). The Committee would be constituted by:

  • 1 person per municipality in the Ocotepeque – Citalá Aquifer area;
  • 2  persons per country representing the local Water Supply & Sewage Authorities operating in the Ocotepeque – Citalá Aquifer area;
  • 1 representative of the network of municipal commonwealths of the Trifinio region;
  • 1 representative of the Plan Trifinio Executive Secretariat;
  • 1 representative each of the ministries responsible for water resources in El Salvador and in Honduras.

The TBA Binational Management Committee also will ensure adequate gender representation and participation of indigenous people. The activities and tasks of the TBA Binational Management Committee are to consist of:

  • Collection and collation of data necessary for the sound management of the TBA;
  • Exchange of information amongst all TBA stakeholders; and
  • Identification of funding in order to deliver its activities.

The signatories further commit themselves to share information available to them, including socio-economic data that is collected locally on both sides of the border. Signatories also commit to harmonize this data in order to facilitate their processing. All these commitments are qualified, as they will be undertaken based on the signatories’ capacities, competences, and respective authority.

Finally, it is foreseen that the cooperation triggered by the Ocotepeque – Citalá Aquifer Binational Management Committee will lead in the future to an agreed binational strategy for the conservation, protection and sustainable utilisation of Ocotepeque – Citalá Aquifer resources, including an implementation plan. In a bid to achieve the integrated management of the water resources in the region, the strategy will take into account the relationship between the Ocotepeque – Citalá Aquifer and the Ocotepeque – Citalá Valley surface water system.

An open and inclusive list of actors in the governance of the Ocotepeque – Citalá Aquifer

One striking aspect of the Ocotepeque – Citalá SoI is its inclusiveness. The document is not an inter-governmental agreement negotiated and signed by the Ministries of Foreign Affairs. However, it is also not “just” a document signed by two sub-national entities, like the Salto-Concordia agreement related to the Guarani Aquifer System. The list of signatories to the Ocotepeque – Citalá SoI includes the following actors:

  • Municipalities;
  • Local water supply and sewerage authorities;
  • Network of municipal commonwealths of the Trifinio region;
  • Plan Trifinio Trinational Commission; and
  • The ministries responsible for water resources in the two countries sharing the  Ocotepeque – Citalá Aquifer.

The Ocotepeque – Citalá SoI is, hence, truly a document stemming from local, national and regional stakeholders. It includes actors who rely on the aquifer for their daily lives and actors who sit further away in the capitals of El Salvador and Honduras. This combination gives both immediacy and legitimacy to the document. The actors also include the top-level executives of the institutional framework in place for the implementation of the Plan Trifinio. This has operated over the past decades as a strong regional organisation capable of leveraging good practices in the field of natural resources management in the area of the Trifinio mountain range that straddles the borders of El Salvador, Guatemala and Honduras.

Interestingly, in its final section, the Ocotepeque – Citalá SoI opens itself to any public and “private” stakeholder based in the area of the Ocotepeque – Citalá Aquifer that wishes to join the initiative. In order to be added to the list of stakeholders that have subscribed to the common intent recorded in the Statement, the representative of the organisation (public or private) simply needs to sign the document.

The possibility of adding more signatories to the document appears to be a positive step forward in increasing the document’s legitimacy. However, it also begs the question of whether this could open the floodgates and reduce the effectiveness of the Ocotepeque – Citalá SoI. The possibility to have private actors sitting aside public actors is a novelty in the field of TBA management. Again, in principle, the participation of private actors should be commended as a positive step since it includes all stakeholders in the future management of the Ocotepeque – Citalá. However, safeguards should be developed to ensure that private actors involved in any future institution and governance framework developed through the SoI contribute meaningfully and not only as a means to lobby their own commercial interest. A further aspect concerns whether foreign private actors will be allowed to sign the document. As it currently stands, the only requirement is that they “belong” to the area of the Ocotepeque – Citalá.

Final remarks on the legal nature of the Ocotepeque – Citalá Statement of Intent

It is worth reminding that the Ocotepeque – Citalá SoI is not a treaty or a Memorandum of Understanding. The document signed in February 2019 in Esquipulas is a mere statement of admittedly good intentions, and should be considered only as such. It does not impose any legal obligation upon any of the signatories, and definitely not on the two countries that share the Ocotepeque – Citalá Aquifer. Nevertheless, the SoI does signal a first step toward a future bi-national cooperation mechanism, and possibly a legal instrument that would underpin it.

UNESCO press release on the Ocotepeque – Citalá Statement of Intent (in Spanish) – https://es.unesco.org/news/avance-historico-gestion-conjunta-recursos-hidricos-compartidos-salvador-y-honduras

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

Sunday, February 12th, 2012

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

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

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

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

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

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

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

On January 23, 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.

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

Sunday, November 21st, 2010

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

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

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

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

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

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

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

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

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