Archive for the ‘International Water Law’ Category

Law of Transboundary Aquifers to be discussed at Stockholm World Water Week

Monday, July 6th, 2009

UNESCO-IHP, along with others, is organising a seminar during the upcoming Stockholm World Water Week on Sharing an Invisible Water Resource for the Common Good: How to Make Use of the UN General Assembly Resolution on the Law of Transboundary Aquifers (TBA).” This looks to be a fantastic event and line up of speakers.

 

In preparation for the seminar, the organizers have launched an internet debate to allow contributions from the rest of us. Those contributions will be compiled in a final report and presented during the seminar in Stockholm. Brief comments, thoughts, and case studies can be sent to IHPSeminarWWW2009  “at”  unesco.org.

 

The following is my own initial contribution:

 

One of my concerns related to the Draft Articles on the Law of Transboundary Aquifers pertains to how nations, organizations and others view the articles. To many, I suspect the articles represent the law by which to judge the actions that States may take vis a vis transboundary ground waters (e.g., did the State comply with the legal obligation). And the emphasis is likely to be on the substantive articles of equitable and reasonable utilization (Draft Art. 4); no significant harm (Draft Art. 6); prevention, reduction and control of pollution (Draft Art. 12), etc. In order to employ these principles to their fullest extent, though, they would be applied ex post facto – after a particular action is taken that results in an alleged claim of violation. This is because the objective determination of what use may be equitable and reasonable, or whether a particular project will significantly harm another state, etc., is, at best, a very difficult exercise where the equity and reasonableness of a water use, or the magnitude of the harm, are mere projection.

 

What I hope is not neglected, thought, is the fact that the Draft Articles are also (or, more so) intended as proactive procedures designed to help nations manage their transboundary aquifers in ways that prevent waste and neglect and, especially, avert disputes among aquifer riparians. Some of the more significant include proactive procedural articles that could easily be implemented prior to or during the implementation of an aquifer-related project, including Draft Art. 8 (Regular exchange of data and information); Draft Art. 9 (Bilateral and regional agreements and arrangements); Draft Art. 13 (Monitoring); Draft Art. 14 (Management); and Draft Art. 15 (Planned Activities). Doing so would likely prevent subsequent violations of the substantive rules. Accordingly, I hope that States, IGOs, NGOs and others place greater emphasis and attention on the procedural provisions of the Draft Articles as a means for encouraging cooperation and collaboration, and for preventing dispute over shared waters.

Supplement to UNEP Bangkok posting

Wednesday, June 3rd, 2009

In my last post, I referenced the work-product of the May 20-22, 2009, UNEP conference – Strengthening Transboundary Freshwater Governance: The Environmental Sustainability Challenge – in Bangkok, Thailand: the Bangkok Plan of Action and the Chair’s Summary of the Technical Segment containing the “recommendations for action to the High-Level Ministerial Segment.”  UNEP has yet to publish them, but here are scanned copies of the two documents distributed at the conference.

Turkey’s GAP project and International Water Law

Thursday, May 28th, 2009

The Greek paper, Kathimerini, reports that the water situation on the Euphrates and Tigris Rivers is getting worse.  Iraqi dam storage is down 75% from 3 years ago, while the river flow in Euphrates has fallen by a similar percentage as compared with the year 2000.  And since rainfall in the region has been average, all finger’s point to Turkey and its ongoing hydro projects.

 

For the past 30-plus years, Turkey has been constructing a series of dams and related waterworks collectively known as the Southeastern Anatolia Project, better known by its Turkish acronym as the “GAP.” The 22 dams and 19 hydro-electric power plants are intended to expand irrigation by 1.7 million hectares in southeastern Turkey, and provide up to 27 billion kilowatt/hours of electricity annually.  While it is difficult to argue against the expected benefits to Turkey, the question is: “at what expense?”

 

Turkey is the upper riparian on both the Tigris and Euphrates Rivers, which flow from Turkey’s eastern mountains down through Syria and into Iraq. The two rivers eventually join in southern Iraq to form the Shat al Arab before entering the Persian Gulf. Both Syria and Iraq, downstream riparians, have complained that Turkey’s GAP activities and the downstream impacts violate international law. The statistics presented in this article give their complaints credence.

 

The difficulty is that Turkey doesn’t seem to care. The country has long championed an absolutist international law perspective – absolute territorial sovereignty – that posits that sovereignty entitles states to unrestrained use of resources found within their territo­ries. They claim that since the majority of water originates within their territory (more than 95% for the Euphrates and some 43% of the Tigris), they should have the right to use it for their benefit.

 

This position is also seen in Turkey’s observance of (or lack thereof) the solitary bilateral water sharing agreement between Turkey and Iraq. Under the 1946 Treaty of Friendship, Turkey is obliged to inform Iraq of any projects it undertakes that are likely to affect the flow of the rivers. Turkey, however, has argued that its activities will only serve to improve water flow in the two rivers and has discounted evidence to the contrary.

 

Turkey was one of three nations (China and Burundi were the other two) that voted against the 1997 UN Watercourses Convention in the UN General Assembly. That instrument stands for the principle of limited territorial sovereignty and obligates states to an equitable and reasonable use of a transboundary watercourse as well as to ensure that activities within their territory do not cause significant harm to other riparian states. Both Iraq and Syria have ratified or acceded to that instrument. That the Convention has yet to go into force (see the Status of the Convention here and my recent post on the subject) is irrelevant as most of its provisions have the status of customary international law. Yet, Turkey continues to espouse its absolutist position.

 

The principal shortcoming of Turkey’s approach is that it is nearly alone in its championing of this approach, one that was discarded long ago by the vast majority of nations. China is the only other nation that I know of that continues to actively assert this position (primarily in relation to the Mekong River). Practically speaking, this absolutist approach disregards downstream consequences and the rights of downstream states to the use of the two rivers. As Turkey is nearly exclusively an upstream state in all of its transboundary rivers, it has not experienced life as a downstream riparian. I suspect that if Turkey had an opportunity to be reliant on an upstream state’s goodwill and good faith, it too would change its perspective (the US so did when it repudiated the Harmon Doctrine in its relations with Mexico when it later negotiated transboundary waters agreements with Canada; but that is a discussion for another time).

 

Possibly, Turkey will eventually find itself reliant on the goodwill and good faith of Syria and Iraq on other issues important to its interests, though, at the moment, I can’t think of any that could be used to counterweigh the water issue. It is more likely that Turkey will find itself reliant on the goodwill and good faith of other nations who might be sympathetic to the plight of Turkey’s downstream neighbors. Membership in the European Union – something Turkey may covet more than the waters of the Tigris and Euphrates – has often been suggested as the likely carrot for Turkey’s cooperation with Syria and Iraq. That, however, presupposes that the EU truly is interested in this dilemma. Given most of Europe’s disdain for the US’s activities in Iraq, there could be a leadership opportunity in the Middle East for the sidelined Europeans. Does Europe have the tenacity and determination to take on this challenge? If not, Iraq and Syria are in for a very long drought.

 

Thanks to Rich Rapier for sending me the link to the Greek article.

Tunisia ratifies 1997 Watercourse Convention

Sunday, May 17th, 2009

On 22 April 2009, Tunisia became the 17th nation to ratify the UN Convention on the Non-navigational Uses of International Watercourses. The Convention represents the UN’s effort to codify customary international law for transboundary fresh water resources. It was adopted by the UN General Assembly in 1997 by a vote of 103 in favor, 27 abstentions, and 3 against, with 33 Members absent (see my analysis of the vote here). Tunisia’s ratification is likely due, in part, to the efforts of the World Wildlife Fund, which in recent years, has embarked on an effort to convince countries to sign on to the Watercourse Convention.

 

While Tunisia’s ratification is certainly a laudatory and welcomed development, the tally of Convention 17 ratifications is still shy of the 35 ratifications needed to bring the instrument into force (you can find the status of the Convention here). However, the real value of the Convention is not in its possible ratification at some future date. Rather, it is in the development of local and regional agreements that follow the general principles articulated in the Convention.

 

The Watercourse Convention was designed to serve as a framework for more specific bilateral and regional agreements relating to the use, management and preservation of transboundary water resources. Additionally, it was intended to help prevent and resolve conflicts over international water resources, and to promote sustainable development and the protection of global water supplies. Even before its adoption by the General Assembly, its draft (formulated by the UN International Law Commission) had already influenced the drafting of local and regional arrangements including the 1992 UN/ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes, the 1995 SADC Protocol on Shared Watercourse Systems (revised in 2000), the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, and the 1991 Protocol on Common Water Resources concluded between Argentina and Chile. It also seems to have had considerable weight in the development of 1999 Draft Protocol to the above-noted 1992 UN/ECE Watercourses/Lakes Convention and was referred to by the International Court of Justice in the Gabcíkovo-Nagymaros case where the Court affirming the centrality of the principle of equitable and reasonable utilization.

 

While I certainly applaud Tunisia’s ratification and the efforts of WWF, I would much prefer to see greater efforts made at developing agreements among basin riparians. Currently, of the 263 international river and lake basins found on Earth, 153 (nearly 60%) still lack an agreement. Moreover, of the 106 basins that have more than 2 riparians and that have an agreement, only 20% of those agreements involve more than 2 of the riparians. Clearly, this is woefully short of what is needed. As for transboundary ground waters, the situation is more dire. Presently, there is only one agreement over a transboundary aquifer (between France and Switzerland over the Genevese Aquifer) and two data sharing arrangements in northern Africa (on the Nubian Sandstone Aquifer and on the Western Sahara Aquifer). In contrast, a recent study prepared under UNESCO’s and IAH’s ISARM (Internationally Shared Aquifer Resources Management) Initiative, indicates that there are at least 273 transboundary aquifers worldwide.

 

Given current water stress and scarcity in many parts of the world, as well as the growing peril from climate change, which threatens to worsen water availability worldwide, the need for cooperation and coordination over shared water resources is greater than it has ever been. While a framework global instrument can provide the guidelines by which to manage transboundary waters, it will be the local and regional agreements that achieve real success in the challenge to secure all peoples and all nations adequate fresh water.