Archive for the ‘Transboundary Aquifers’ Category

Israeli-Palestinian Agreement on Water within Sight

Wednesday, January 8th, 2014

The following post is by David B. Brooks, an Associate with the International Institute for Sustainable Development in Winnipeg, Manitoba, Canada. Mr. Brooks can be contacted at david.b.brooks34 [at] gmail.com.

Many people have said that the last thing on which Israelis and Palestinians will be able to agree is fresh water.  They are very likely wrong.  Over the past year, the two governments have been discussing a draft water agreement that was designed by Friends of the Earth Middle East (FoEME), an Israeli-Jordanian-Palestinian environmental NGO that focuses on border issues.

Failings of the Oslo Process

Since the start of the Oslo process in 1993, all attempts at the peace process have been predicated on the belief that that a peace agreement must provide a simultaneous solution to all issues (i.e., “nothing is agreed until everything is agreed”). This approach has failed.

Based on the development of a draft water agreement for FoEME by two Canadians, David B. Brooks and Julie Trottier, as well as informal discussions with the Israeli Institute for National Security Studies and the Palestinian Water Authority, the best chance for reviving the floundering peace process is to start by tackling “easier” issues, particularly fresh water.

Shared Water Resources of Israel, Palestine and Jordan

Given the Palestinian need for more water, Israel’s new water supply from large-scale desalination, and a mutual need to deal with untreated sewage, bringing water from last to first in the peace process makes economic, ecological, and, most importantly, political sense. For Palestinians, it would provide fresh water in every home; for Israelis, it would remove pollutants from rivers that flow through its main cities. The goal in sight is a Final Accord on Water, not just another interim step.

Breaking Away from the Oslo Model for Water

In addition to the broad tradeoff – more water for Palestinians; better water for Israelis -– the FoEME Proposal is put forward on the basis of two political questions: First, why wait for conclusion of a final status agreement? If, instead of fixed allocations, as with the Oslo agreements, one thinks of ongoing joint management, agreement can be reached right now.  Second, why not shift from a static to a dynamic form of agreement?  The Oslo agreement is dependent on a particular set of borders; the FoEME Proposal is adaptable to any set of borders.  The Oslo-designed Joint Water Committee can only deal with what is deemed Palestinian water; the FoEME Proposal includes joint management of all shared water, which is to say any water that flows along, across, or under the border.  The Oslo approach looks at water as primarily a supply issue; the FoEME Proposal gives as much attention to reducing demand as to increasing supply.  Finally, but perhaps most important, the Oslo agreements propose fixed quantitative allocations of water to Israelis and to Palestinians; the FoEME Proposal incorporates an ongoing review process that adjusts water allocations over time, and ensures that total withdrawals stay within sustainable limits.

One cannot share water as if it were a pie.  Transboundary agreements can divide land this way, but not water.  Water may start as rainfall, but it is then typically used over and over again, sometimes by a group of Palestinian farmers cooperating in a decentralized way, sometimes by the highly centralized Israeli water network, before it finally evaporates or flows into the sea.   With each stage of use, water quality is altered, generally for the worse.  The Oslo approach treats water as if it were both immobile and constant in quality.  The FoEME Proposal recognizes that water is mobile in space and variable in quality.

The Structure of the FoEME Proposal

Cover Page - An Agreement to Share WaterThe FoEME Proposal suggests creation of two key bodies:

  • Bilateral Water Commission replaces today’s Joint Water Committee with responsibility for all shared water (non-shared water sources would remain managed nationally).  The BWC makes key decisions on rates of extraction and of delivery of shared water, and the removal and treatment of waste water.  Its decisions are based on advice from an Office of Science Advisors (OSA) made up of professional staff appointed or seconded by the two governments.  Because it is potentially so powerful, the BWC is not allowed to make decisions independently; rather, it can only accept or reject recommendations from the OSA, but not alter them.  This format avoids giving either side the ability to leverage water issues in endless horse-trading on other, wider issues.
  • Water Mediation Board comes into play whenever the BWC finds itself unable to accept a decision of the science advisors, or if a group or community opposes its decision.  The WMB would have a wide range of tools available to guide a process of seeking resolution ranging from scientific investigations to public forums.  All of these tools must be used in as transparent a way as possible, so as to give credence to its recommendations.

 

Both the BWC and WMB should be composed of an equal number of Israeli and Palestinian representatives plus possibly one person from outside the region. If voting is necessary, the rules are designed to prevent either side from dominating the other.  For example, if the BWC has seven members, any majority decision would have to have to have the support of least one Israeli and one Palestinian.

An Israeli-Palestinian water agreement is possible – Right now!  Though not designed for any purpose other than managing shared water, it could become the first step in creating the final status agreement that has eluded negotiators for so many years.

 

The full 180,000 word version of An Agreement to Share Water between Israelis and Palestinians: The FoEME Proposal (with Arabic and Hebrew translations of key chapters) by David B. Brooks and Julie Trottier is available here.  An abridged version, entitled Changing the Nature of Transboundary Water Agreements: The Israeli-Palestinian Case by Brooks, Trottier and Laura Doliner, is available here.

Adoption of Regional Strategic Action Plan on the Nubian Sandstone Aquifer

Sunday, October 20th, 2013

The following post is by Raya Marina Stephan, a water law specialist and consultant, and Chair of the Publication Committee of the International Water Resources Association. Ms. Stephan can be reached at raya.stephan [at] yahoo.com.

On 18 September 2013, the Ministers in charge of water resources in the four States of the Nubian Sandstone Aquifer System (NSAS) (Chad, Egypt, Libya & Sudan), and the Chairperson of the Joint Authority for the Study and Development of the Nubian Aquifer, signed an important document, the Regional Strategic Action Plan (SAP).

The NSAS is one of the largest aquifer systems in the world, composed of non-renewable groundwater. It extends over 2,000,000 km2 and contains about 540,000 km3 of water, out of which 15,340 km3 is believed to be exploitable.

Nubian Sandstone Aquifer System (NSAS)

Nubian Sandstone Aquifer System (NSAS)

Cooperation over the NSAS dates back at least to 1989 when Egypt and Libya established among themselves a Joint Authority (JA) for the Study and Development of the Nubian Sandstone Aquifer System. In 1992, the two States adopted the agreement “Constitution of the Joint Authority for the Study and Development of the Nubian Sandstone Aquifer Waters” (see Annex 7 in the GEF Project Document).  Sudan joined the collaboration in 1996 and Chad officially affiliated in 1999.   This agreement is one of the few agreements worldwide over a transboundary aquifer. While the number of identified transboundary aquifers globally exceeds 315 (IGRAC 2012), only four have an interstate agreement. Besides the NSAS, there are: the agreement on the Genevese Aquifer (French, English), the Ministerial declarations on the North Western Sahara Aquifer System, and the agreement on the Guarani Aquifer (Portuguese, Spanish, English). It is also relevant to mention the 2009 memorandum of agreement and road map adopted by the States of the Iullemeden aquifer system (Niger, Nigeria and Mali), however little progress has been made on this effort so far.

The agreement on the NSAS, as its name indicates, is an agreement creating the Joint Authority (JA), which is intended to serve as a joint institution/commission for the management of the shared aquifer. The agreement provides the basic rules for its functioning, and its responsibilities are quite wide and large. For instance, the JA can, conduct studies on the Nubian aquifer, is entitled to develop programs and plans for the utilization of water, and can propose and execute a common policy for the development and utilization of the water resources of the aquifer. The JA can also ration the consumption of water from the Nubian Sandstone Aquifer in the member countries and, therefore, holds real management responsibilities. The agreement is, thus, more an institutional agreement than merely a water management one.

The first project (1998-2002) on the Nubian aquifer, the “Regional Strategy for the Utilization of the Nubian Sandstone Aquifer System” executed by the Center for Environment and Development for the Arab Region and Europe (CEDARE), resulted in an improved scientific knowledge of the aquifer system and the consideration of the socio-economic conditions in the riparian States. During this project, the JA acted as the Project Steering Committee and was relatively active holding yearly meetings.

In 2006, the four States engaged in a second project – Formulation of an Action Programme for the Integrated Management of the Shared Nubian Aquifer – funded by the Global Environment Facility (GEF) and executed by the International Atomic Energy Agency, with a support from UNESCO (see project website). The overall objective of the project is to establish a rational and equitable management of the NSAS for sustainable socio-economic development and the protection of biodiversity and land resources. To achieve this goal, national multidisciplinary teams in the riparian States were constituted and, with the support of a team of international experts, prepared the Shared Aquifer Diagnostic Analysis (SADA) to jointly identify, understand, and reach agreement on the priority issues, threats, and root causes of the NSAS. The SADA identifies the following key transboundary concerns:

  1. Declining water levels related to abstractions
  2. Damage or loss of the ecosystem and biodiversity that are linked to the aquifer at oases
  3. Water quality deterioration from pollution (industry, agriculture and urban)

Following adoption of the SADA, national team of experts identified the common NSAS vision and key water resource objectives as well as the ecosystems linked and dependent on the aquifer.  Finally, a common set of management actions addressing the key NSAS transboundary issues were prepared, which lead to the recently-signed SAP.  The adopted vision for the NSAS under the SAP is:

“To assure rational and equitable management of the NSAS for sustainable socio-economic development and the protection of biodiversity and land resources whilst ensuring no detrimental effects on the shared aquifer countries.”

The signing of the SAP document at the ministerial level represents an important step forward in building the cooperation process among the NSAS countries. It is the common and joint commitment to the identified shared vision for the cooperative management of the NSAS by the States and the JA, as well as the commitment to implement the actions.

Rethinking Transboundary Ground Water Resources Management: A Local Approach along the Mexico-U.S. Border

Monday, May 6th, 2013

The following post is by Gabriel Eckstein, Director of the International Water Law Project, Professor of Law at Texas Wesleyan University, and Of Counsel with Sullivan & Worcester. He can be reached at gabriel [at] internationalwaterlaw.org. This post is based on a new article by the same title.

The nearly 2,000 mile-long border between Mexico and the United States is hot and dry. Few rivers cross this arid expanse. Yet, despite the lack of visible, life-sustaining water, the region is growing – the combined border population, currently around 14.4 million, is expected to increase 40% by 2020.  The reason for this remarkable growth is ground water, more specifically, transboundary aquifers.  As many as twenty aquifers straddle the Mexico-U.S. border, many of which serve as the primary or sole source of fresh water for the border’s communities and unique ecosystems.

Map produced by the U.N. Educational, Scientific, and Cultural Organization, the World Meteorological Organization, and the International Groundwater Resources Assessment Centre suggesting the presence of 10 transboundary aquifers or aquifer systems along the Mexico-U.S. border.

Notwithstanding the undeniable importance of the region’s transboundary aquifers, neither Mexico nor the United States seem inclined to pursue a border-wide pact to coordinate management of these critical freshwater resources. While recommendations have been proffered for more than forty years, all appear to have fallen on deaf ears.  As a result, these resources are now being overexploited on both frontiers as populations and industries pump with little regard for sustainability or transboundary consequences.  Moreover, these subsurface reservoirs are being fouled by untreated wastes, agricultural and industrial by-products, and other sources of pollution.  Imminently unsustainable, the situation portends a grim future for the region.

If both federal governments are unwilling to take decisive steps, what else can be done?  Are there alternatives to a formal, comprehensive, border-wide regime that would address the complexity and multitude of issues related to the various transboundary aquifers on the border?

In a recently published article, I advocate for an alternative approach, one that sidesteps the respective federal authorities and places the burden of pursuing cross-border cooperation on the communities that so depend on these critical fresh water resources.  Essentially, I propose that subnational entities at the local and regional level pursue cooperation over transboundary aquifers in the form of informal, locally-specific, cross-border arrangements.

While this tactic challenges the national governments’ traditional monopoly over international relations, especially as they relate to transboundary natural resources, there is good reason to believe that such an approach could achieve what Mexico City and Washington, DC have failed (or declined) to do – create effective collaborative schemes for the mutual and sustainable management of the region’s transboundary aquifers.

Map showing the six Mexican states and four US states, as well as numerous sister cities, along the Mexico-US border. Map courtesy of USEPA: http://www.epa.gov/region9/annualreport/07/images/mexico-us-border.jpg

Under the unique circumstances of the Mexico-U.S. border, informal and quasi-formal arrangements are more likely to create viable cross-border pacts that would be respected by the local communities.  The degree of interest that the national authorities have in a local issue is often directly proportional to the physical distance from the capitol.  In contrast, local decision-makers are typically better informed about local and regional cross-border concerns than federal bureaucrats, especially on issues related to the management of local fresh water resources.  Moreover, local authorities are better able to reflect the values and preferences of those most likely to be affected by a water accord with a neighboring country, which, for a local border community, is merely a short drive away.  Critically, local decision-making would likely be more sustainable, as well as responsive and adaptable to changing climatic and economic circumstances and improved knowledge, given that the local communities and their children will have to live with their decision far into the future.

In addition, a local approach to the management of transboundary aquifers makes hydrologic sense.  No two aquifers are alike; each functions as a complex and unique hydrological system.  Moreover, no two aquifers are perceived equally by overlaying communities, especially where those communities are highly dependent on the resources to meet their daily freshwater needs.  Hence, aquifers traversing the Mexico-U.S. border cannot be managed effectively through a single, comprehensive, border-wide treaty.  While a border-wide scheme may be politically convenient, such an approach could only offer very general guidelines and standards, and may prove detrimental to the sustainable management of some of the region’s subsurface waters.  Rather, an effective, sound, and equitable management plan should be tailored to each transboundary aquifer’s unique characteristics and circumstances.

One concern often raised with a local approach to the management of transboundary natural resources is the legality of such action.  As is true under most nations’ foundational instruments, both the Mexican and the U.S. constitutions recognize the national government as the sole authority empowered to deal with foreign representatives; they prohibit states, cities, and other subnational political units from entering into treaties and other formal relations with counterparts across the border.  The goal here, however, is not to create multiple, locally-specific, formal treaties throughout the border.  Rather, the goal is the development and implementation of informal or quasi-formal, locally-specific, cross-border arrangements that are implemented through cooperative understandings or memorandum of understanding, or more structured contracts for goods or services.  In the United States, while the former would be immune to Constitutional scrutiny due to their unofficial, unenforceable, and non-binding nature, the latter would be immune to the extent that the U.S. Congress has not preempted such activities under its authority to regulate interstate commerce.

Given the state of the economy, domestic and international terrorism, drug wars, and other societal and political challenges, ground water on the Mexico-U.S. border is not a priority of the Mexican and American governments.  Unfortunately, that lack of prioritization is jeopardizing the long-term viability and habitability of the border area and portends the possible downfall of many communities and ecosystems throughout the region.

The two federal governments, though, are not indispensable for developing sustainable and coordinated ground water relations on the border.  Through informal locally-specific, cross-border arrangements, frontier communities can, on their own, achieve viable cross-border pacts that will ensure the water futures of their peoples, economies, and environment.  For a more comprehensive consideration of this proposal, please see my recently published article.

Remembrance of Ambassador Chusei Yamada

Monday, March 25th, 2013

It is always sad when a colleague passes on. Somehow, it is even more sorrowful when that person was a friend to and respected by so many. On 21 March 2013, Ambassador Chusei Yamada passed away in his native Japan; and the global water community lost a great friend.

Ambassador Chusei Yamada

During his long and distinguished career, Ambassador Yamada served in various diplomatic posts, including as Japan’s Ambassador to Egypt (1989-92), India (1993-95), and Bhutan (1993-95).  He also served as an arbitrator and conciliator under the UN Convention on the Law of the Sea, and most recently, as Special Assistant to the Minister for Foreign Affairs of Japan.  While all eminent and critical roles, his work toward bridging the water divide between riparian aquifer nations may be his most significant legacy.

I met Ambassador Yamada in 2003 when I was first invited to participate on a UNESCO-organized advisory group to the UN International Commission (UNILC).  Ambassador Yamada had been selected as the UNILC’s Special Rapporteur on the topic of Shared Natural Resources and had undertaken a process to draft principles of law that would apply to transboundary aquifers.

Ambassador Chusei YamadaI had always thought it rather astute of the Commission to select someone for this role from a country that, as an island-nation, had no contiguous neighbors with whom to share transboundary fresh water aquifers. As I got to know the Ambassador, though, I realized that his selection as Special Rapporteur was even more portentous in that from the start, Ambassador Yamada poured his heart and soul into this singular challenge.

Ambassador Yamada had no formal background in ground water resources let alone training in a hard science.  He was a lawyer and a diplomat, and above all a gentleman (see Ambassador Yamada’s brief bio).  Yet, in the six years that our advisory group supported his efforts, the Ambassador became so well versed in hydrogeology and related water issues that the International Association of Hydrogeologists recognized him “for outstanding contribution to the understanding, development, management and protection of groundwater resources internationally” and awarded him their Distinguished Associate Award for 2008 (see IAH newsletter, Issue D30, December 2008, pp. 3-4).

Yamada and IAH Award

“Ambassador Chusei Yamada receiving the IAH Distinguished Associate Award 2008 at a ceremony in Geneva in July 2008. Willi Struckmeier (then Secretary General and now IAH President) hands over a special issue World Hydrogeological Map showing transboundary aquifers while Shammy Puri, Chairman of the IAH Transboundary Aquifer Resources Management Commission and now IAH Secretary General, looks on.” From: IAH newsletter, Issue D30, December 2008, pp. 3-4.

Ambassador Yamada’s contribution to the global water community cannot be overstated.  He made every effort to ensure that the principles that the UNILC drafted for the management of transboundary aquifers would be based on sound science as well as be socially and politically feasible.  As he gained new knowledge and information, he sought to pass on that education to his colleagues in the UN; as his recommendations faced challenges based on misunderstandings and cross-border mistrust, he used his diplomatic acumen to achieve compromises.

It is true that some of the nineteen draft articles that the UNILC finally transmitted to the UN General Assembly in late 2008 may not be ideal.  Nevertheless, they represent the most significant and comprehensive effort to date to address transboundary aquifers and to develop a durable legal framework for the sustainable and peaceful management of shared ground water resources.  Based on that framework, nations around the world are now beginning to reach across their frontiers to coordinate and collaborate with their neighbors over their shared aquifers (see e.g., Agreement on the Guarani Aquifer [Spanish] [Portuguese]).  Truly, we all owe Ambassador Chusei Yamada our gratitude for laying out such a propitious roadmap.

The Future of Africa’s Water Security

Sunday, May 27th, 2012

Special thanks to Kavitha Pramod for co-authoring this essay

This map, published with the original MacDonald, et.al., study, depicts potential ground water resources on the African continent. Areas in blue represent the most water-abundant areas.

Not long ago, the BBC reported (here) on vast reservoirs of ground water resources underlying the African continent and the critical use that this water could have for populations now and in the future. While the so-called “discovery” of this water wealth may be questionable (see WaterWired’s Michael Campana explaining what we already knew here), the resurgence in interest in fresh water for Africa is a critical development in itself. The MacDonald, et.al., study that started this latest brouhaha can be found here.

Africa remains one of the poorest regions in the world in terms of access to fresh water resources. A recent report by UNICEF and the World Health Organization (here) indicates that approximately 300 million people in sub-Saharan Africa are without access to safe and clean drinking water. Of the countries reported to have less than fifty-percent coverage in water supply, almost all are located in sub-Saharan Africa. Additionally, only some thirty-percent of the population in sub-Saharan Africa is blessed with improved sanitation coverage, making the region one of the most underserved in the world.

In the year 2000, the world’s major leaders came together at the United Nations Headquarters in New York to adopt the United Nations Millennium Declaration (here). The Declaration was intended to create a global partnership aimed at reducing extreme poverty throughout the world. Targets, known as the Millennium Development Goals, were set to achieve the Declaration’s aim, with a deadline for the year 2015 (see here). In sub-Saharan Africa, where some of the worst poverty and water scarcity conditions exist, only nineteen of the fifty existing countries are expected to meet the Goals’ drinking water targets by the year 2015.

This UNECA chart compares water availability for countries throughout Africa from 1990 to 2025. By 2025, all countries in the region are expected to be in a state of water vulnerability, with most being in states of water stress or water scarcity.

Of further concern for the sub-Saharan African region is that according to the United Nations, over the next ten to fifteen years, as populations continue to expand, per capita water supplies will diminish significantly to the point where available supplies will no longer be able to meet the water needs of many of the region’s nations.

Given the troubled state of Africa’s water circumstances, a renewed focus on the significant sources of ground water underlying much of the continent comes at a very important time. In addition to concentrating attention on a dire situation, it provides opportunities for the region and the global community to explore means of overcoming the water challenges facing Africa and for sustainably developing and managing these underground resources. One of these opportunities is directly tied to the fact that many of Africa’s aquifers are transboundary, underlying two or more nations. The Nubian Sandstone Aquifer System, for example, is situated below Chad, Egypt, Libya, and Sudan; the Iullemeden Aquifer System underlays Mali, Niger and Nigeria; and the Baggara Basin aquifer is underneath Central African Republic, Sudan, and South Sudan, including the parched and war-ravaged Darfur region.

As the availability of fresh water decreases across the continent, competition and tensions over transboundary resources are likely to rise. To date, however, none of the transboundary aquifer countries in Africa have entered into an aquifer sharing or management arrangement. The only transboundary aquifer-related arrangements on the continent are two rudimentary consultative and data-sharing agreements formulated for the Nubian Sandstone and Northwestern Sahara aquifers in North Africa (you can find the texts for these arrangements here and here).

More than seventy aquifers and aquifer systems in Africa have been identified as “transboundary” by the United Nations’ International Groundwater Resources Assessment Center. IGRAC’s Transboundary Aquifers of the World 2012 map is available here.

An attempt also was made to develop an extensive consultative and management regime for the Iullemeden Aquifer System. In 2009, the overlying nations (Mali, Niger and Nigeria) signed the Declaration of Bamako (here) and an accompanying Memorandum of Understanding for the establishment of a consultative mechanism for the management of the Iullemeden Aquifer System (here) whose goals were to: (1) identifying transboundary risks and uncertainties, (2) formulate joint risk mitigation and sharing policies, and (3) facilitate the sustainable development of the Iullemeden Aquifer System’s resources. While the arrangement contained rather progressive and thoughtful approaches and mechanisms, the effort appear to have stalled.

Given the levels of water stress and scarcity that African countries are currently experiencing, and which are predicted to increase rapidly, the need for action is immediate. Although ground water resources in Africa are vast and provide great opportunities for overcoming the continent’s water scarcity problems, the lack of information, technical capacity, adequate funding, and cooperation prevents many African nations from overcoming the water challenges facing them. Accordingly, it is crucial that all of Africa – from the national level to the most local community – develop programs that will expand the exploration of water resources, push for data-generation and sharing, and encourage cross-border cooperative and sustainable management initiatives. It is also critical that the United Nations, as well as the developed world, offer their assistance for this worthwhile effort.

The mere discovery of a new source of fresh water underlying one of another nation will not ensure it a future free of water scarcity. Only by cooperating and carefully and sustainably managing such resources will Africa’s nations be able to secure the much needed water for its communities and environment.

 

UNGA Adopts New Resolution on Transboundary Aquifers

Saturday, December 17th, 2011

On 9 December 2011 the United Nations General Assembly (UNGA), at its 66th session, adopted Resolution 66/104 on the “Law of Transboundary Aquifers”:

Resolution on the Law of Transboundary Aquifers

The General Assembly,

   Recalling its resolution 63/124 of 11 December 2008, which took note of the draft articles on the law of transboundary aquifers formulated by the International Law Commission,

   Noting the major importance of the subject of the law of transboundary aquifers in the relations of States, and the need for reasonable and proper management of transboundary aquifers, a vitally important natural resource, through international cooperation,

   Emphasizing the continuing importance of the codification and progressive development of international law, as referred to in Article 13, paragraph 1(a), of the Charter of the United Nations,

   Taking note of the comments of Governments and the discussion in the Sixth Committee at the sixty-third and sixty-sixth sessions of the General Assembly on this topic,1

1.    Further encourages the States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of the draft articles annexed to its resolution 63/124;

2.    Encourages the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization, whose contribution was noted in its resolution 63/124, to offer further scientific and technical assistance to the States concerned;

3.    Decides to include in the provisional agenda of its sixty-eighth session an item entitled “The law of transboundary aquifers” and, in the light of written comments of Governments, as well as views expressed in the debates held at the sixty-third and sixty-sixth sessions of the General Assembly, to continue to examine, inter alia, the question of the final form that might be given to the draft articles.

1 Official Records of the General Assembly, Sixty-third Session, Sixth Committee, 26th meeting (A/C.6/63/SR.26), and corrigendum; and ibid., Sixty-sixth Session, Sixth Committee, 16th and 29th meetings (A/C.6/66/SR.16 and 29), and corrigendum.

 

Transboundary Aquifers in the Americas

Transboundary Aquifers in the Americas

The Resolution, which has yet to be published separately but which is attached to a 9 November report of the UN’s 6th (Legal) Committee, follows up on the UNGA’s December 2008 action in which it welcomed the work of the UN International Law Commission (see Resolution A/res/63/124) [U.N. General Assembly Resolution on the Law of Transboundary Aquifers, A/RES/63/124 (December 2008)] in formulating nineteen draft articles on the law of transboundary aquifers along with detailed commentaries (available in English, Arabic, Chinese, French, Russian, and Spanish). At the time, the UNGA commended the draft articles to the attention of all UN member-States and placed them on the provisional agenda of the current UNGA session.

To some, adoption of the most recent UNGA resolution may be disheartening since it tables for another day discussion on the merits of the draft articles. Moreover, it postpones consideration of the final form that might be given to the draft articles (e.g., freestanding convention, protocol to the 1997 Watercourses Convention, guidelines, etc.) as well as implementation of a global framework for managing transboundary aquifers.

 

Transboundary Aquifers in Africa

Transboundary Aquifers in Africa

Nonetheless, the fact that transboundary aquifers remain on the UNGA’s agenda is a testament to the importance that countries continue to ascribe to the subject. While there may not yet be a global agreement on how shared ground water resources should be shared, there is broad recognition that transboundary aquifers are a critical and inseparable component of the global water resource system. More than one-half of humanity depends on ground water for their everyday freshwater needs including drinking, cooking, and hygiene. Moreover, in places like North Africa, the Middle East, and the Mexico-US border, transboundary aquifers serve as the primary or sole source of fresh water for human and environmental sustenance. With increasing pressures coming from climate change, population growth, and economic development, the need for a regulatory framework for cooperation and coordination over the world’s fresh water resources, and especially transboundary aquifers, continues to be an imperative.

 

Transboundary Aquifers in Asia

Transboundary Aquifers in Asia

By adopting this recent Resolution and placing the topic on the provisional agenda of its 68th session, the Assembly has emphasized the need to keep the spotlight on transboundary aquifers around the world. Moreover, by encouraging nations to enter into bilateral and regional transboundary aquifer arrangements on the basis of the draft articles, it has recognized the need for the development of norms and frameworks for cooperation over this vital resource.

While the UNGA’s approach in pursuing such a framework may be frustratingly sluggish, it might be intentional. Although the draft articles on the law of transboundary aquifers were composed with lightning speed (in contrast to the 25 years it took to craft the draft articles leading to the 1997 Watercourses Convention, the present draft articles were prepared in less than six years), they were not achieved without controversy. Among the various disputes, many nations continue to advocate that any portion of a transboundary aquifer found within a state’s territory should be subject to the principle of permanent sovereignty over natural resource (recall the UNGA’s Resolution 1803 (XVII) of 14 December 1962). This is in stark contrast to the principle of equitable and reasonable utilization, a cornerstone of modern international water law.

 

Transboundary Aquifers in Europe

Transboundary Aquifers in Europe

Accordingly, in order to prevent the wholesale rejection of the draft articles, the Assembly may be taking a soft approach to the development of global standards and norms for managing transboundary ground water resources. This approach effectively allows countries to “test run” the principles and norms proposed in the draft articles without imposing any binding obligations. And given the dearth of experience with managing transboundary aquifers, this organic and measured tactic may be justified as it will allow for the formulation of locally-specific rules and procedures that are tailored to the unique characteristics of individual shared aquifers. Ultimately, as aquifer riparians begin to utilize, abide by, and modify these norms, it is quite possible that their efforts will evolve into demonstrable state practice and, thereby, customary international law.

UPDATE: Resolution 66/104 is now available here.

Sources for Maps:

Transboundary Aquifers of the Americas – UNESCO/OAS, 2007. Sistemas acuíferos transfronterizos en las Américas. Evaluación Preliminar. Programa UNESCO/OEA ISARM Américas, Serie ISARM Américas N◦1. Montevideo/Washington DC: UNESCO-IHP/OAS

Transboundary Aquifers in Africa – UNESCO, 2004. ISARM-Africa. Managing shared aquifer resources in Africa. B. Appelgren, ed. ISARM-Africa. IHP-VI, series on groundwater 8. Paris: UNESCO

Transboundary Aquifers in Asia – UNESCO, 2008. Transboundary aquifers in Asia with special emphasis to China. Han Zaisheng, Wang Hao and Chai Rui associated with R. Jayakumar, Liu Ke and Wang Jin, eds. Report of ISARM Asia pilot case study. Paris: UNESCO

Transboundary Aquifers in Europe – IGRAC, Transboundary Aquifers of the World, map at 1 : 50 000 000, 2009

Ground water, ground water, everywhere …

Friday, September 16th, 2011

In 2008, the UN General Assembly took note of the draft articles on the law of transboundary aquifers and commended them to the consideration of its member States. Those articles were the work-product of the UN International Law Commission, which was supported by an advisory group organized by the International Hydrological Programme of the UN Educational, Scientific and Cultural Organization. As indicated in that resolution, the draft articles have now been placed on the provisional agenda of the 66th Session of the UN General Assembly (UNGA), which recently commenced in New York City. The Sixth Committee (legal) of the UNGA is scheduled to examine the question of the form that might be given to the draft articles on 18 October 2011.

Not coincidentally, the most recent issue of Water International (which is guest edited by yours truly) focuses on “Strengthening Cooperation on Transboundary Groundwater Resources.” The special issue is a compilation of articles and essays on the development of international ground water law and focuses, in large part, on the draft articles. The issue also includes a number of relevant and fascinating case studies. Here is the table of contents:

Note that unless you are a member of the International Water Resources Association or pay for individual issues, you will only have access to the abstracts (note that IWRA membership is relatively inexpensive and provides access to all present and back issues of Water International).

Libya and Water as a Weapon

Thursday, September 15th, 2011

The following post is by Rhett Larson, Visiting Assistant Professor of Law at Arizona State University Sandra Day O’Connor College of Law. Professor Larson specializes on environmental and natural resource law and, in particular, on domestic and international water law and policy. Professor Larson offers the following post as part of his ongoing research.

 

The conflict in Libya raises a number of important international water law and policy questions, including the legal implications of using water supply and infrastructure as a weapon, and the role of the international community in guiding domestic water policy in transition or post-conflict governments with control of a major international waterbody. A recent article in The National (here) illustrated these issues and reported that Gaddafi’s forces had sabotaged water supply facilities, attacked water supply personnel working with the transition Libyan government, and limited access to strategic water supply locations thereby aggravating the ongoing Libyan water crisis. There were even rumors that the former regime may have even tried to poison some of the country’s fresh water resources.

In particular, the article focused on the fate of the Nubian Sandstone Aquifer System (NSAS) in the Libyan Conflict. The NSAS is the largest fossil aquifer system in the world, underlying the territory of Libya, Chad, Egypt, and Sudan. It is also the source for Gaddafi’s “Great Man-Made River” (“GMMR”), an incredible engineering feat that provides around 6.5 million cubic meters of water daily to coastal cities in Libya and drives Libya’s economy (see this BBC article on the GMMR).

The Libyan conflict brought to the fore possible violations of international law through the use of water supplies and infrastructure as a weapon (see Protocols I and II to the Geneva Convention relating to the Protection of Victims of International Armed Conflicts here and here). Assuming the rumors reported by the National are true, Gaddafi’s forces may have violated Geneva Convention prohibitions against attacking drinking water installations indispensable to the civilian population under Article 54 of Protocol I and Article 14 of Protocol II to the Geneva Convention. Libya acceded to both instruments in 1978. Gaddafi forces thus could be held as war criminals for their actions relating to attacks on water installations.

However, The National also reported that NATO airstrikes targeted GMMR installations where Gaddafi forces had hidden military assets along the pipeline. Most NATO countries have similarly acceded to or ratified the Geneva Convention protocols. The NATO attacks, according to The National, occurred at storage sites for unused pipeline, and, therefore, arguably were not to water installations “indispensable to the civilian population.” Protocol I provides exceptions to the prohibition on attacks of water installation, including when those installation used only to sustain military forces (as opposed to civilian populations). Nevertheless, attacks on water installations are strictly prohibited under Protocol I where those attacks would leave a civilian population without adequate food or water, leading to starvation or mass migration.

As the National further reported, the Libyan transitional government saw the only resolution of the water crisis being an attack to retake strategic water installations held by Gaddafi loyalists. However, that action to restore water supply carried with it risks of violating Geneva Convention proscriptions against attacks on water installations that may be supporting a civilian population. The Libyan transitional government and its partners were left with deciding how to take control of water supply and infrastructure in Libya and reverse the effects of Gaddafi forces’ violations of the Geneva Convention, without violating those Convention provisions themselves.

In the long term, the legal issues that will follow this conflict will relate to how the NSAS will be developed and its waters allocated to the nations overlying the aquifer. The law of transboundary aquifers, like the NSAS, is still developing (in the form of the draft International Law Commission’s “Articles on the Law of Transboundary Aquifers”).

Currently, international law in this area is still undeveloped and Libya remains the only country that has invested efforts to develop the NSAS to any significant extent. However, there is an effort to develop a regional strategy for using and protecting the NSAS, including an ongoing monitoring and data-sharing initiative involving all four overlying nations (see here).

It’s difficult to tell what impact a regime change (should it prove durable) would have on relations in the region as they relate to the NSAS. But just as the relationships on the Nile have changed with the ouster of Mubarak and the South Sudan referendum (see prior post on the The Hydro-Challenges of the New State of South Sudan in the Nile Basin), the outcome of the Libyan conflict could have major impacts on one of the world’s great groundwater resources.

UNDP/GEF Publish Review of Legal and Institutional Frameworks for Transboundary Waters

Thursday, May 5th, 2011

If you haven’t seen this report, its very interesting and timely. The UN Development Programme (UNDP) and Global Environmental Facility (GEF) have just published a global review of legal and institutional frameworks for 28 transboundary surface water, groundwater and marine water systems covering the Americas, Europe, Africa and Asia (full report can be found here). The report was spearheaded by Richard Kyle Paisley, Director for the Global Transboundary International Waters Research Initiative at the University of British Columbia. Here is an excerpt from the description:

The project, with a life-cycle of three years, seeks to facilitate good governance and effective decision making in international waters through the identification, collection, adaptation and replication of beneficial practices and lessons learned from a wide range of experiences. The project focuses on institutional harmonization and strengthening, capacity building in regard to integrated water management, and forecasting the hydrological impacts from climate change and the anticipated responses to these changes.

The report’s analysis is organized by a common set of 18 criteria and is intended to provide information that can be used to support further research and analysis, with the ultimate goal of identifying a set of common elements of good governance for transboundary freshwater and marine water bodies as well as groundwater systems. This report is based on primary materials that establish legal and institutional frameworks, such as international agreements including treaties and conventions, where applicable, protocols or action plans.

The full report can be downloaded here.

Conference on the Guarani Aquifer Agreement

Monday, February 14th, 2011

The signing of the Agreement on the Guarani Aquifer [Spanish] [Portuguese] on August 2, 2010, evidenced the continued progress being made in the pursuit of greater harmony in global hydro diplomacy (see my review of the agreement). True, South America is not lacking in fresh water resources. Yet, the effort by the overlying nations (Argentine, Brazil, Paraguay, and Uruguay) is laudable for its peaceful and cooperative approach. The four countries are now involved in the ratification process and in  negotiations over  institutional aspects, including discussions regarding an annex to the Agreement on arbitration procedures. How will these nations implement this agreement? What additional steps should they take?

Francesco Sindico, currently at the University of Surrey, Guildford, United Kingdom, along with colleagues Ricardo Hirata of the Centro de Pesquisas de Água Subterrânea–Instituto de Geociências da Universidade de São Paulo (CEPAS – IGc/USP) and Geroncio Rocha of the Secretaria do Meio Ambiente do Estado de São Paulo, is organizing a conference – “The Management of the Guarani Aquifer System: An Example of Cooperation” – in São Paulo, Brazil 21-23 September 2011. The deadline for abstract submission is 30 April 2011. Three conference sessions will address:

  1. An assessment of the scientific knowledge on the GAS
  2. Current use and protection of the Guarani Aquifer System
  3. The GAS and regional cooperation

For further information please see the full call for papers at: