Archive for the ‘International Water Law’ Category

Accord or Discord on the Nile? – Part I

Monday, July 26th, 2010

Its always a good day when nations come to terms over shared fresh water resources, especially in the more parched regions of the world. Hence, it was a wonderful turn of events when various news agencies (e.g., here, here, here, here, and here) reported recently that the nations of the Nile River Basin had reached an accord over the waters of one of the most disputed rivers in the world. On 14 May 2010, the countries of Ethiopia, Rwanda, Tanzania and Uganda signed the Agreement on the Nile River Basin Cooperative Framework (CFA); Kenya added its signature five days later.

To read it in the news release of the Nile Basin Initiative, a partnership created in 1999 among all of the Nile riparians minus Eritrea (which has observer status at the Initiative) to seek this very accord, readers might think that all serious controversies had been resolved by the nations that share the waters of the Nile (the five that signed the CFA plus Burundi, D.R. Congo, Egypt, Eritrea, and Sudan). Behind the veneer, though, the achievement remains hamstrung by the ages-old controversy plaguing many riverine nations on transboundary watercourses – the upstream-downstream dispute. As reported, though possibly understated, by some of the news agencies, the most downstream riparians on the Nile River are refusing to join their upstream neighbors in the agreement. Both Egypt and Sudan, who have already allocated around 90% of the Nile’s waters between themselves under a 1959 treaty (Egypt also claims a veto right over upstream hydro projects under a 1929 agreement with Britain, the region’s former colonial overseer), have raised serious objections to the new agreement.

Sudan and especially Egypt have long claimed historical rights to the waters of the Nile River based on their dozens of centuries of use and reliance on the watercourse. Their argument is grounded in the notion that older, established rights are superior to more recent claims and is akin to the prior appropriation system used in most of the western United States. Moreover, both countries are highly dependent on the Nile’s waters for maintaining their development and living standards and Egypt has raised the specter of national security as justification for defending its claims.

The difficulty with this position, at least from the perspective of the upper riparians, is that because Egypt and Sudan have made claims to the vast majority of the Nile’s waters, little is left for the peoples of the other eight nations. Moreover, international water law has tended to shun absolute claims of right and has opted for more flexible principles, such as equitable and reasonable use, which allow the possibility that nations’ rights to shared waters may be adjusted in response to changing circumstances.

Egypt, however, has also raised a more novel argument by differentiating between the Nile River and the Nile Basin. While the former carries between 90-100 billion cubic meters of water down the watercourse, the latter actually receives some 1,660 billion cubic meters of rainfall, 85 percent of which falls on the Ethiopian high plateau and the rest over the other upstream nations. Those upstream riparians, Egypt contends, should focus their efforts and claims on developing the vast volume of untapped waters that are otherwise lost to evaporation and infiltration. Notably, Egypt has offered to cooperate on and assist with such water development projects.

As it stands, five nations have signed the CFA and Burundi and DR Congo have indicated they may add their marks in the near future. Actual ratification, though, is the gold standard in international law and the CFA requires six ratifications before it can come into force. To date, none of the Nile riaprians have ratified the accord.

And, what about the accord itself?  Surprisingly, it is nowhere to be found. An extensive online search for the CFA found no direct or indirect hits (other than the news stories about the agreement). It also revealed that even the upstream nations who signed the agreement have not provided its text on their official websites. Moreover, queries to colleagues and contacts around the world, some of whom are well placed, produced nothing (well, almost – see my next IWLP blog posting).

Why would countries sign on to a new treaty, announce the event in a very public process, and then neglect to provide the text of what they agreed to? It seems a rather strange set of circumstances. Of course, this merely may be a pardonable oversight. Moreover, it may be that the text of the CFA is available elsewhere (though, none of my contacts can figure out where). Nonetheless, in this modern information age where public access is often defined by availability on the Internet (even in Africa), and where nearly every bit of text produced on Earth that is fit to print appears first on the Internet, the CFA is conspicuously absent.

The exclusion of the CFA from the public, though, is likely a function of the ongoing upstream-downstream discord that remains among the Nile’s riparians pitting Egypt and Sudan on one side and the remaining riparians on the other. Maybe the Nile Basin nations want to present a more harmonious front when revealing the treaty, or maybe they fear scrutiny of the agreement before it is finalized. Yet, agreements forged behind closed doors, even those that merely give the appearance of secrecy, often falter because of the lack of public support. And since it is the people of the Nile that are at the core of this agreement and who stand to benefit from a more cooperative sharing of the watercourse, the agreement should be made public even though it has yet to be endorsed by all of the Nile Basin governments.

To date, with one exception (by Business Daily Africa.com, which, for a business-oriented publication, offered a surprisingly rosy assessment of the accord), there has been no review or assessment of the rights and obligations that would be created under this new arrangement. Having finally procured a copy of my own, here is my brief take on the CFA.

Geneva Initiative Releases Water Annex to Model Israel-Palestinian Peace Agreement

Wednesday, September 16th, 2009

Yesterday, September 15, 2009, the Geneva Initiative released its long-awaited Annexes to its Model Israeli-Palestinian Peace Agreement. Among the various annexes was one pertaining to water. While not the most legally artful agreement, the accord is a remarkable and positive development in the pursuit of peace between the two peoples.

Among the more interesting points is the recognition by both parties that they both possess rights to water in water resources that traverse their political boundaries. This includes the Mountain aquifer and its various sub-basins, the Coastal Aquifer, the Jordan River, and the Dead Sea.  This point has been a particularly important issue for the Palestinians who strive for nationhood and the respect due a sovereign people.  A related and equally crucial issue for the Palestinians is the acknowledgment in the accord by Israel that a “just and rightful” allocation of water between the two peoples requires a “re-division” of shared water resources in favor of the Palestinians. The Palestinians have long claimed that Israel has taken more than its fair share and ignored the Palestinians’ rights to the water in the region.

In response, Israel’s concerns about the contamination of its water supply are partly addressed in the provisions related to both parties’ obligation to void causing significant transboundary harm via shared waters. The definition afforded to the term “harm” in this provision is rather broad in scope and encompasses detrimental effects not only to people and property, but also to the natural environment. Israel has voiced considerable misgivings about the Palestinian’s ability to manage wastewater and other pollutants in the highlands of the West Bank (part of the presumptive Palestinian State).  This region is the recharge area for the Mountain Aquifer and any inflow of pollutants (which is already occurring to some extent) threatens Israel’s water supply in the lower reaches of the aquifer below Israel proper.

One other noteworthy provision in the Water Annex is the creation of a Joint Water Commission, which in its initial stage, would have some authority to adjust water allocations between the two states in response to “significant hydrologic and climatic changes.” What this may mean in practice remains to be seen, however, the creation of a joint commission composed of three representatives from each side with a voting “neutral chairman of another nationality” suggests a serious desire to develop a fair mechanism for cooperative water management and allocation.

Although a full analysis of the annex is beyond the scope of this simple posting, it suffices to say that the accord is a positive development in the search for peace in the region. That is not to say that the Water Annex (as well as some of the others) is not fraught with problems.  In fact, there are numerous inconsistencies and amalgamation of disparate concepts that will require refinement, harmonization and clarification.

Nonetheless, the document and the entire model agreement signal a willingness to compromise by both sides, at least on the part of civil society. As with all of the annexes spearheaded by the Geneva Initiative, this document is the product of negotiations by Israeli and Palestinian civil society members (rather than politicians or diplomats), every day people who were fed up with the unending stalemate at the official levels. By sidestepping the political process, they sought to avoid the rhetoric and seek a compromise in the spirit of fairness and mutual respect. Their efforts deserve recognition not only by the press, but also by their fellow citizens and elected representatives on both sides.

I must note that I had the honor of serving as one of a number of neutral advisers in the initial negotiations of what became the Water Annex. In addition, while all those involved in the development of this model water accord should be commended for their efforts, it is noteworthy that the Annex was prepared in memory of Palestinian, Dr. Fadia Daibes Murad. It is truly a fitting tribute to her efforts.

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.