Archive for the ‘Transboundary Rivers’ Category

A Treaty on the Brink? India’s Suspension of the IWT and the Case for Cooperative Transboundary Water Governance

Monday, June 16th, 2025

The following post is by Drs. Tadesse Kebebew, Caroline Pellaton, and Mara Tignino. Kebebew is a Legal Researcher and Project Manager at the Geneva Water Hub, a joint center of the University of Geneva and the Geneva Graduate Institute; Pellaton is the Operations Director at the Geneva Water Hub; Tignino is Senior Lecturer at the Faculty of Law and the Global Studies Institute and Lead Legal Specialist of the Platform for International Water Law at the Geneva Water Hub. You can reach Dr. Tignino at Mara.Tignino [at] unige.ch.

How a ‘terror’ attack sparked a water dispute

Long regarded as one of the most resilient frameworks for transboundary water cooperation, the Indus Waters Treaty (IWT) signed in 1960 is now under acute strain amid escalating geopolitical tensions, marked by deepening mistrust, intensifying nationalist discourse and sustained militarisation. It was within this volatile context that on 22 April 2025, an armed group known as The Resistance Front carried out a deadly attack on a group of tourists in Pahalgam, located in Indian-administered Kashmir. The assault resulted in the deaths of at least 26 civilians and prompted immediate condemnation from Indian authorities, who attributed the attack to Pakistan-based militant support.

The Indus River Basin. Source: United Nations

In the immediate aftermath, on 24 April 2025, India formally notified Pakistan of its decision to suspend the IWT. In its official communication, India appeared to cite two justifications for this decision – a fundamental change in circumstances since the treaty entered into force and breaches of treaty obligations by Pakistan. Specifically, India pointed to what it described as ‘sustained cross-border terrorism targeting the Indian Union Territory of Jammu and Kashmir’, asserting that these ongoing hostilities have generated serious ‘security uncertainties’ and thereby impaired India’s ability to fully utilise its entitlements under the treaty.

On 12 May 2025, Prime Minister Narendra Modi declared that ‘India’s water will flow for India’s benefit, it will be conserved for India’s benefit, and it will be used for India’s progress’, reiterating his longstanding position that ‘blood and water cannot flow together’. This stance was reinforced on 22 May 2025, when External Affairs Minister Subrahmanyam Jaishankar confirmed that India’s participation in the IWT would remain in abeyance until Pakistan ‘credibly and irreversibly’ ends its support for terrorism. These statements reflect a deliberate linking of transboundary water cooperation under the IWT to broader national security concerns.

A legacy of cooperation and disputes

The IWT, signed in 1960 under the auspices of the World Bank, is a rare example of resilient cooperation in a historically hostile relationship. It allocates the three eastern rivers (Ravi, Beas, Sutlej) to India and the three western rivers (Indus, Jhelum, Chenab) to Pakistan. Under the treaty, India was granted exclusive use of the three eastern rivers – Ravi, Beas and Sutlej, while Pakistan received rights over the three western rivers – Indus, Jhelum and Chenab. India retained limited rights to use the western rivers for non-consumptive purposes, such as hydropower, subject to specific design and operational constraints intended to protect downstream flows to Pakistan. In cases of disputes, the IWT establishes dispute resolution mechanisms comprising the Permanent Indus Commission, the resort to a neutral expert, and an arbitration procedure. India and Pakistan have already used all these mechanisms and currently, two disputes are under review by an arbitration tribunal and a neutral expert.

Indus Waters treaty signing on 19 September 1960. From left to right: Jawaharlal Nehru, Prime Minister of India; Mohammed Ayub Khan, President of Pakistan; and William Illiff, World Bank vice president. Source: The World Bank

Despite armed conflicts (1965, 1971, Kargil 1999), military standoffs, and tensions, the IWT has stood firm for over six decades, serving as a lifeline for millions dependent on the Indus River basin. Cooperation over water has persisted, even as broader bilateral ties fractured. Nevertheless, the treaty has been tested by recurring disagreements over dam designs and water use. Notably, the Kishenganga Hydroelectric Project on the Jhelum River led to formal arbitration before the Permanent Court of Arbitration, which in its 2013 Final Award, upheld India’s right to divert waters but imposed minimum environmental flow requirements to safeguard Pakistan’s downstream interests. These and other disputes, including those over the Baglihar Dam, reveal the capacity of the treaty to address disputes within a clear legal and institutional framework. Its strong dispute-resolution clause allows the Parties to find common solutions despite the geopolitical and hydrological stress. More recently, concerns have grown over what Pakistan views as India’s efforts to reduce water cooperation to a zero-sum game, threatening the cooperative spirit that the IWT was designed to foster.

India’s suspension of the IWT

The Neelum–Jhelum Hydropower Plant, Pakistan. Source: SimonImages, iStock

The announcement by the Government of India that the treaty would be ‘held in abeyance with immediate effect’ constitutes an unprecedented move in the treaty’s history and has since sparked a wave of intense legal debates (see here, here and here). India has sought to justify this decision by invoking the doctrine of ‘fundamental change of circumstances’ and alleging a material breach by Pakistan, specifically citing Pakistan’s alleged support for cross-border terrorism that jeopardizes its national security. While these concerns are of considerable political significance, their adequacy as legal grounds for a unilateral suspension of IWT is questionable.

Do the justifications cited by India meet the criteria of a ‘fundamental change of circumstances’ as understood in international treaty law? Can persistent cross-border terrorism and the associated security challenges be deemed a material breach sufficient to justify unilateral suspension? In the following sections, we scrutinize the legality of India’s suspension of the IWT from the standpoint of international treaty law, particularly as codified in the Vienna Convention on the Law of Treaties (VCLT) of 1969. Although India is not a party to the VCLT, its provisions are broadly recognized as reflective of customary international law (see the Gabcíkovo-Nagymaros case (Hungary/ Slovakia, 1997, para.46)) and thus applicable to the conduct of all states. This analysis evaluates India’s justifications against a tightly constrained legal framework for treaty suspension recognized in customary international law – operation of the treaty or mutual consent, impossibility of performance and fundamental change of circumstances.

Operation of the treaty or mutual consent

The VCLT sets out the foundational legal framework governing the conclusion, entry into force, application, suspension and termination of treaties. Article 26 of the VCLT enshrines the principle of pacta sunt servanda, which requires that treaties in force must be observed and performed in good faith by all parties. There are also legally recognized grounds to suspend a treaty in whole or in part. The first of such grounds is by the operation of the treaty (either expressly or by implication) or mutual consent of the parties involved (either during the conclusion of the treaty or afterwards) (see Articles 57-59). These provisions presuppose a mutual and voluntary decision by all treaty parties to suspend its application, whether partially or wholly.

However, the IWT contains no clause permitting unilateral suspension, and there is no evidence that Pakistan has provided explicit or implicit consent to such action. On the contrary, Pakistan has consistently maintained that the treaty remains fully in force and has actively sought third-party adjudication to ensure its continued implementation. As such, in the absence of any mutual agreement, India’s unilateral decision to suspend the treaty lacks a valid legal basis under these provisions. The essential element of reciprocal consent is absent, and therefore, this route does not provide India with a lawful justification for its actions.

Fundamental change of circumstances

India’s primary legal justification centres on the claim that there has been a fundamental change of circumstances since the treaty entered into force. Under Article 62 of the VCLT, the doctrine of rebus sic stantibus, allows for the termination or suspension of a treaty if an unforeseen and fundamental change of circumstances has occurred, radically transforming the obligations imposed by the treaty. While frequently invoked, this ground is rarely accepted in international practice and is interpreted restrictively to preserve the stability and continuity of treaty relations. The International Court of Justice (ICJ), in the Gabcíkovo-Nagymaros case, affirmed that ‘the negative and conditional wording of Article 62’ is a clear indication that the stability of treaty relations requires that ‘the plea of fundamental change of circumstances be applied only in exceptional cases’ (para. 104).

For such a claim to succeed, the alleged change must (1) have been unforeseen by the parties at the time of the treaty’s conclusion, (2) constitute an essential basis of their consent to be bound by the treaty, and (3) have radically altered the nature of the obligations still to be performed. In the Fisheries Jurisdiction case (United Kingdom v. Iceland, 1973), the ICJ underscored that only changes of circumstances that are ‘fundamental’ or those which constituted an essential basis of the consent of the parties to accept a treaty and which have resulted in a radical transformation of the extent of the obligations still to be performed, can be accepted as valid grounds (paras 36-38, & 41). In the Gabcíkovo-Nagymaros case, the ICJ reemphasized that this ground requires that the fundamental change of circumstances ‘radically transform the extent of the obligations’ to something essentially different from what is undertaken initially and that such changes ‘must have been unforeseen’ (para.104). Interestingly, it indicated that ‘new developments in the state of environmental knowledge’, arguably including climate change-related issues, cannot be said unforeseen (para.104).

These precedents underscore the ICJ’s insistence on strict adherence to the principle of good faith and stability of conventional law in international treaty relations and confirm that no party may unilaterally abrogate its obligations on the vague basis of changed political, social or environmental conditions.

In light of the foregoing, India’s claims in its official statement of 24 April 2025 of the ‘altered population demographics’ and ‘the need to accelerate the development of clean energy and other changes in the assumptions underlying the sharing of waters, do not constitute ‘fundamental change of circumstances’.

A material breach of treaty obligation

India’s second justification is the allegation that Pakistan has committed a material breach of the treaty by providing support to cross-border terrorism. Under Article 60 of the VCLT, a party to a bilateral treaty may suspend its obligations if the other party commits a material breach, defined as a violation of a provision essential to the treaty’s object or purpose.

This legal ground imposes a high threshold and is intended to balance the stability of treaty relations with flexibility in the face of serious violations. Crucially, the breach must pertain directly to the core provisions of the treaty itself, not to external political or security disputes. In this case, no evidence has been put forward that Pakistan has breached any substantive provisions of the IWT, which remains an agreement on water sharing in the Indus River Basin. Allegations of terrorism, while grave, fall outside the scope of the treaty and, therefore, cannot be construed as a material breach of its core provisions. Moreover, the IWT includes a detailed dispute resolution framework India was obligated to pursue before taking unilateral action. India’s bypassing of this process weakens the legal validity of its claim under Article 60.

Accordingly, India’s assertion that Pakistan’s alleged support for terrorism justifies suspending the treaty is legally unconvincing. Firstly, a terrorist incident, even if state-attributed, does not satisfy the threshold for suspension of a water-sharing treaty. This claim concerns political and security matters that do not alter the physical or institutional operation of the water-sharing arrangement. Secondly, according to the IWT itself, ‘the existence of any fact which, if established, might constitute a breach of this Treaty shall first be examined’ by the Permanent Indus Commission (Article XI). Thirdly, the treaty has already withstood armed conflicts and decades of hostile relations, which suggests that it operates independently of fluctuating bilateral tensions. Consequently, India’s position does not satisfy the stringent requirements of Article 62.

Moreover, even if India seeks to justify its suspension of the Indus Waters Treaty (IWT) as a lawful countermeasure under the law of state responsibility, namely, a temporary and unilateral non-performance of obligations in response to a prior internationally wrongful act (see Articles 49-54 of the Draft articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)), we argue that the conditions set out in the ARSIWA are not met. Countermeasures involve a temporary derogation from treaty obligations and may be taken in response to violations of any international obligation by the other party, not necessarily one arising from the same treaty. On this basis, India could argue that Pakistan’s alleged breaches of other international obligations justify its actions.

However, countermeasures are strictly regulated under the ARSIWA. To be lawful, they must be proportionate, reversible and aimed at inducing compliance, not punishing the offending state. India’s abrupt and unilateral suspension of the IWT, particularly in the absence of prior notification or genuine efforts at dispute resolution, appears more punitive than corrective. Additionally, countermeasures must not interfere with obligations essential to the protection of fundamental human rights (Article 50, ARSIWA). Given that access to water is intrinsically linked to public health, food security and basic human survival, any disruption in water-sharing under the IWT risks crossing into unlawfulness, especially if it jeopardises drinking water or irrigation critical to affected populations.

Supervening the impossibility of performance

A further legal ground, though not explicitly raised by India, could be inferred from its communication – the supervening impossibility of performance. Article 61 of the VCLT permits termination or suspension only when the performance of the treaty becomes objectively impossible due to the permanent disappearance or destruction of an essential element necessary for performance. A commonly cited example of this ground is the ‘drying up of a river’, where such an event renders the performance of the treaty objectively impossible (Shaw, 2017, p. 719).

In the case of the IWT, the Indus River system and its tributaries have not changed and are not at risk of drying up. No objective impossibility, whether legal or physical, has been demonstrated. Besides, neither party has asserted that performance under the IWT has become impossible. India’s security concerns, even if genuine, pertain to unrelated security and geopolitical issues rather than any factual impediment to fulfilling the treaty’s core obligations.

Continuing obligations under international water law (IWL)

Even assuming, for argument’s sake, that India could validly suspend or withdraw from the IWT, it would still be bound by general principles of international water law. These are most clearly articulated in the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses. While neither India nor Pakistan is a party to the Convention, its key principles – equitable and reasonable utilization, the obligation not to cause significant harm and the duty of prior notification – are widely recognized as customary international law (see e.g., here, pp.14 & 16). These obligations ensure that riparian states cooperate in good faith and do not undertake actions that would materially harm co-riparian rights.

Hence, India’s suspension of treaty obligations does not place it outside the scope of international legal scrutiny. As an upstream riparian state, India has a duty to manage its water resources in a manner that does not significantly harm Pakistan’s rights. A unilateral disruption of river flows or suspension of data-sharing mechanisms would likely breach these customary obligations, subjecting India to international legal accountability.

A case for a peaceful dispute resolution

Under international law, states must resolve their disputes peacefully (UN Charter, Articles 33-38). Reflecting this principle, the IWT incorporates a structured three-tiered dispute resolution mechanism: the Permanent Indus Commission, recourse to a Neutral Expert, and adjudication by a Court of Arbitration. Of particular importance is the mandate given to the Permanent Indus Commission, i.e., ‘to establish and maintain co-operative arrangements for the, implementation of this Treaty, to promote co-operation between the Parties in the development of the waters of the Rivers’ (Article VIII, IWT).

India’s previous engagement in the Kishenganga arbitration clearly illustrates that treaty-related disputes can be addressed effectively through these mechanisms, without resorting to suspension or unilateral measures. Currently, another dispute is pending before an Arbitration Tribunal. The dispute was brought by Pakistan in 2016 and concerns the construction of several hydroelectric plants on the Indus, Jhelum and Chenab rivers and their tributaries. Although India has decided not to appear before the Tribunal and considered a neutral expert must address the questions placed before the judicial body, the Arbitral Tribunal declared itself as competent to decide on the questions raised in Pakistan’s Request for Arbitration.

Conclusion

This analysis finds that India’s suspension of the IWT lacks a valid legal basis under international law. None of the recognized grounds – mutual consent, impossibility of performance, or fundamental change of circumstances – apply to the case at hand, making the action incompatible with the principle of pacta sunt servanda and broader international law principles and norms. Unilateral suspension risks weakening longstanding institutional cooperation and unravelling one of the few enduring mechanisms of India–Pakistan engagement. Rather than suspending or disregarding the treaty, a more constructive path lies in allowing the Commission to incorporate new environmental standards in the application and interpretation of the provisions of the Treaty.

As IWL continues to develop and refine, water must be used by India and Pakistan as a tool of rapprochement and dialogue and not as an additional means of division. Preserving and reinforcing the IWT and its Permanent Indus Commission offers a vital opportunity for dialogue and shared prosperity in a region. A recommitment to the treaty is not only legally necessary, but geopolitically urgent.

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The Rio Grande/Río Bravo Basin: old disputes in a new century

Monday, October 3rd, 2022

This essay is written by Regina M. Buono, Principal at Aither, and Gabriel Eckstein, Professor of Law at Texas A&M University, and director of the International Water Law Project. It first appeared on the Global Water Forum on September 28, 2022.

The Rio Grande River, known in Mexico as the Río Bravo, is one of the principal rivers in the southwestern United States and northern Mexico. Originating in Colorado in the U.S., the Rio Grande flows over 3,000 kilometers to the Gulf of Mexico. Its basin covers an area over 500,000 square kilometers. Governing such an important transboundary water system poses a multitude of issues, and the most recent treaty guiding such efforts is now almost 80 years old. Regina Buono and Gabriel Eckstein discuss here the big challenges facing the Rio Grande/Río Bravo Basin, and how effective the current governance arrangements are.

The Rio Grande flowing through a national park in Texas, U.S. The Rio Grande/Río Bravo Basin ties two nations together through shared natural resources, wildlife habitats, socio-economic systems, culture and history. Governing this transboundary system is an enormous challenge. (Image by David Mark from Pixabay)

Mexico and the United States have shared the Rio Grande river basin (known as the Río Bravo in Mexico) for over 170 years. Though the basin includes over 2,000 kilometers of international border, it also ties the two nations together through shared natural resources and wildlife habitats, socio-economic systems, and cultural and historic bonds.

Management of the Rio Grande and its tributaries is governed by a series of border treaties and institutions, as well as the domestic national and state laws of the two countries. The most recent and visible border treaty is the 1944 Treaty on the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, an agreement often lauded for enabling innovative and collaborative governance of the three named rivers.

In recent years the treaty regime has come under intense pressure. Domestic and international water governance institutions are struggling under the strain of climate change impacts, population growth, and the attendant impacts to water supply and demand in the region. Three issues are of particular concern: (1) an increasing focus on groundwater and groundwater-surface water interactions and the related practical and policy implications; (2) strained relations between the two treaty parties, as well as with local and regional stakeholders; and (3) resolution of Mexico’s water debt under Article 4 of the 1944 Treaty and the need to facilitate increased reliability and predictability in Rio Grande water deliveries.

Groundwater, a crucial resource long neglected and little understood

Groundwater has long been neglected by the Mexico-US transboundary water regime. Groundwater plays a significant role in agricultural production, economic development, and even the social fabric of the region, but the estimated 72 transboundary aquifers and hydrological units have only sporadically been studied and are excluded from the existing treaty regime. Groundwater supplies, which constitute essential water sources for millions of people on both sides of the border, are managed under independent, domestic legal regimes in each country. Moreover, there are no procedures or mechanisms to integrate hydrologically related groundwater into the overall management and allocation regime of the Rio Grande.

To address this disorder, a key first step is to collect existing information on groundwater-surface water relationships in the basin, and to fill the significant knowledge gaps with additional research. It’s also important to expand the existing system for data and information sharing to include groundwater resources and facilitate more opportunities for public participation by local stakeholders in the governance system, since groundwater—more so than rivers and lakes—is regarded as a local resource. Finally, the management and governance of transboundary aquifers should be pursued collaboratively by local and regional stakeholders on both sides in a manner that allows full engagement and collaborative decision-making.

Governance across borders

The binational institution responsible for managing Mexico-US border waters is the International Boundary and Water Commission (IBWC/CILA). Its current approach to managing the Rio Grande, which offers limited stakeholder involvement, has been heavily criticized, especially as more integrated and inclusive management approaches have proliferated elsewhere around the world.

Stakeholder participation and transparency are relatively more advanced in the U.S., in part, a function of that country’s decentralized approach to water management, which requires local participation to operate effectively. Stakeholder engagement in the U.S. also benefits from the greater availability of resources for state-level administrations and agencies that support the development and administration of local and regional water plans, as well as from efforts by private and civil society groups.

In contrast, stakeholder participation and transparency on the Mexican side is largely absent because of the country’s centralized approach to water management. Since the vast majority of domestic water-management decisions are made by the country’s federal water agency, CONAGUA, at the national level, local communities have little to no real opportunity to be involved in meaningful decision-making. The eventual effects of these enduring conditions became apparent in the summer and fall of 2020 when Mexican farmers in the state of Chihuahua protested water deliveries from the Rio Conchos, Mexico’s chief tributary to the Rio Grande. The protests were a poignant symptom of the disenfranchisement of local water stakeholders in that country.

Mexico’s water debt under the 1944 Treaty

Under the 1944 treaty, Mexico is obliged to deliver to the U.S. an average annual 350,000 acre-feet of water down the Rio Conchos and into the Rio Grande. The treaty allows Mexico to carry over any incomplete balances of water from one 5-year cycle to the subsequent 5-year cycle in the event of an “extraordinary drought.” The two countries, however, have historically disagreed over the meaning of “extraordinary drought” and whether repayment of a water debt can be carried forward over more than two consecutive 5-year cycles (Carter et al. 2017). By the Fall of 2021, Mexico had accumulated a significant water debt and was poised to begin a third 5-year cycle in arrears.

On October 21, 2021, three days before Mexico would have violated its delivery obligations, IBWC/CILA signed an agreement to resolve the issue. Under Minute 325, Mexico fulfilled its delivery obligations by transferring the entirety of its water in the Amistad and Falcon reservoirs to the U.S. While the transfer nearly depleted all of Northern Mexico’s stored water in the reservoirs, in doing so, Mexico abided by the 1944 Treaty and ended the 2016-2020 cycle debt free (Helfgott 2021). The minute also resolved the long-standing disagreement over Mexico’s ability to end two back-to-back cycles, stating that two successive cycles “may not end in a deficiency.”

Minute 325 also recognized the importance of two pre-existing working groups, the Rio Grande Hydrology Work Group tasked with developing technical information on the Rio Grande, and the Rio Grande Policy Work Group, which oversees the Hydrology Work Group and “consider[s] water management policies in the basin.” The two groups are now tasked with developing a new minute by December 2023 to provide “increased reliability and predictability in Rio Grande water deliveries to water users in the United States and Mexico” (IBWC 2020, ¶4).

Equitable, efficient and peaceful water governance

Though challenges remain, the 1944 Treaty’s mechanisms—and, in particular, the treaty’s minute system—have been shown to facilitate and support innovations in water management, and new efforts to improve sustainable management and public engagement in the Rio Grande basin are underway at various levels. As severe drought sets in across Europe, the American west, China, and other parts of the world—underscoring the need to allocate and manage water use equitably, efficiently, and peacefully—it is increasingly imperative that humans imbue water management systems around the world with these qualities.

This essay is a condensed version from the authors’ chapter on “Current challenges in the Rio Grande/Río Bravo Basin: old disputes in a new century,” which appears in Water Resources Allocation and Agriculture: Transitioning from Open to Regulated Access, (Josselin Rouillard, at.al., Eds., Edward Elgar 2022), available at https://doi.org/10.2166/9781789062786.

References

Carter Nicole, SP Mulligan & C Ribando Seelke (2017). U.S.-Mexico Water Sharing: Background and Recent Developments, Congressional Research Services, R43312. https://fas.org/sgp/crs/row/R43312.pdf.

Helfgott Alexandra (2021). Bilateral Water Management: Water Sharing between the US and Mexico along the Border. Wilson Center. https://www.wilsoncenter.org/article/bilateral-water-management-water-sharing-between-us-and-mexico-along-border

International Boundary and Water Commission (2020). Minute 325: Measures to End the Current Rio Grande Water Delivery Cycle Without a Shortfall, to Provide Humanitarian Support for the municipal Water Supply for Mexican Communities, and to Establish Mechanisms for Future Cooperation to Improve the Predictability and Reliability of Rio Grande Water Deliveries to Users in the United States and Mexico. Available at: https://www.ibwc.gov/Files/Minutes/Min325.pdf

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

Wednesday, July 7th, 2021

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

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

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

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

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

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

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

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

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Posted in Africa, Middle East, Transboundary Rivers, Water Conflicts | 2 Comments »

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

Monday, March 22nd, 2021

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

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

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

The Nile River Basin. Source: Nile Basin Initiative

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

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

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

The full article can be accessed here.

Posted in Africa, International Water Law, Middle East, New Resources & Information, Transboundary Rivers, Water Conflicts | Comments Off on Sink or Swim: Alternatives for Unlocking the Grand Ethiopian Renaissance Dam Dispute

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

Wednesday, January 27th, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

You can access the monograph here.

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Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty

Tuesday, April 16th, 2019

The following essay by Dr. Maria A. Gwynn is a summary of her recently published monograph (under the same title), which appears in Vol. 4(1) 2019, of Brill Research Perspectives in International Water Law.  Dr. Maria A. Gwynn is a Senior Research Fellow at the Institute of Public International Law of the University of Bonn, and conducted most of the research contained in this monograph while she was an Oxford-Princeton Global Leaders Fellow at Princeton University and at the University of Oxford. She can be reached at maria.gwynn [at] uni-bonn.de.

 

The UN Convention on the non-navigational uses of international watercourses recommends that states adapt their existing bilateral and regional agreements to the provisions of the Convention to promote equitable and reasonable uses of watercourses. This monograph assesses the practical consequences of this provision, and the prospects for achieving sustainable development with such action, and uses the Itaipu Treaty as a case study.

The Parana River

The Itaipu Treaty, which was signed and ratified by Brazil and Paraguay in 1973 and continues to be in force today, was established so that these two countries would jointly pursue the advantages that could be obtained from the exploitation of the Parana River to

The former Guaira Falls

produce hydropower through the construction of a dam. The Parana River is an international watercourse on the South American continent sourced by the La Plata basin. The dam was constructed at the river’s most powerful point, the Guaira Falls, formerly the greatest set of waterfalls on the South American continent, which disappeared after the construction of the dam.

The river’s great resources were not underestimated. Today, the sheer amount of energy that the Itaipu Dam produces has placed both countries among the largest producers of clean and renewable energy in the world. However, while Brazil consumes its entire share of the energy produced, Paraguay (whose available share of energy from the hydropower facilities far exceeds its own domestic energy demands) only consumes a small part of this clean and renewable energy source. Paraguay, instead, continues to use biomass sources (burning of coal and wood) to satisfy most of its energy needs. Under the Itaipu Treaty, Paraguay sells its unused allotment of energy to Brazil.In general, the Itaipu Treaty regulates the use and consumption of hydropower produced by the dam, making the provisions of the treaty very pertinent to understanding the two countries’ energy policies.

The Itaipu Dam and Reservoir

The Itaipu Treaty entered into force before the United Nations International Law Commission had finished its task of evaluating the international law and customs on the non-navigational uses of international watercourses, embodied in the UN Watercourses Convention, and before some of the major developments concerning international environmental law came about. However, the Itaipu

Treaty contains a renegotiation provision, according to which the two states must renegotiate some of its provisions 50 years following the conclusion of the treaty, i.e. in the upcoming year 2023. The monograph argues that this is a great opportunity for both countries to adapt their watercourse agreements to the current standard and principles of international law.

The monograph provides a detailed assessment of the advantages of adapting watercourse agreements to the standard and principles of all pertinent areas of international law, such as international water law, international environmental law, and climate change law. The first part of the monograph begins with an analysis of the initial approaches to the law of international watercourses in the first half of the twentieth century. It discusses some of the main principles of the law governing international watercourses and the work of pertinent institutions concerned with this area. In this sense, the first part of the monograph describes the status of the law on international watercourses at the time when the Itaipu project was first pursued.

Signing the Acta de Yguazu Agreement in 1966

The second part of the monograph discusses the Itaipu project in its legal and historical context. An analysis of the principles of consultation and notification for projects on international watercourses are particularly instructive. The monograph describes the relevance of the role of Paraguay, which despite being a main treaty party, has often been neglected in the scholarship.  The monograph shows how escalation of disputes to an international conflict regarding sovereignty was eased by benefit sharing agreements and inter-state cooperation of the countries of the La Plata basin. The monograph also offers a comparative analysis to similar cooperation and benefit sharing agreements signed at about the same time in other parts of the world.

The Itaipu Agreement

The third part of the monograph describes the advances in the law of international watercourses and of environmental law since the 1970s, and places the implementation of the Itaipu Treaty, which in turn is analyzed in the fourth part of the monograph, within this context. The fifth part of the monograph describes recent disputes concerning the non-navigational uses of international watercourses decided by the International Court of Justice in an analysis that connects the decisions of such judgments with the monograph’s object of study.

The monograph concludes by highlighting how the treaty provisions and their implementation could be affected by the developments in international law and the UN Watercourses Convention in particular. It argues that adapting watercourses agreements like the Itaipu Treaty to the provisions of the Convention is a way to foster

The UN Sustainable Development Goals

sustainable development. Doing so would be advantageous not only to the treaty parties, but also to the other countries in the water basin and to the international community as a whole.

The monograph is dedicated to the memory of Prof. Dr. Efrain Cardozo (1906-1973) and to Prof. Dr. Ruben Ramirez Pane (1920-2004).

The entire article is available here.

 

Posted in Brill Research Perspectives – International Water Law, International Water Law, Latin America, South America, Sustainable Development, Transboundary Rivers, UN Watercourses Convention | Comments Off on Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty

Shared Watercourses and Water Security in South Asia: Challenges of Negotiating and Enforcing Treaties

Monday, August 27th, 2018

The following essay by Drs. Salman M. A. Salman and Kishor Uprety is a summary of their recently published monograph (under the same title), which appears in Vol. 3(3) 2018, pp. 1-100, of Brill Research Perspectives in International Water Law.  Dr. Salman is an academic researcher and consultant on water law and policy and Editor-in-Chief of Brill Research Perspectives, International Water Law. He can be reached at SalmanMASalman [at] gmail.com. Dr. Uprety is Senior Lawyer with the Asian Infrastructure Investment Bank and an Associate Editor of Brill Research Perspectives, International Water Law. He can be reached at Dr.kishoruprety [at] gmail.com.

 

A large number of rivers in the South Asia region are shared across borders. Afghanistan, Bangladesh, Bhutan, China, India, Nepal and Pakistan share more than two dozen major rivers. Conflicting claims over those transboundary watercourses is a major security challenge in the region. Indeed, shared watercourses have influenced South Asia’s geography and history, as well as riparians’ responses to the challenges of utilizing, managing, and protecting such water bodies. Because of scarcity, population growth, and climate change impacts, national calls for water security have become louder and more intense in each of these countries. Consequently, collaboration among the countries of South Asia for ensuring equitable sharing of such watercourses has not been optimal.

Map of South Asia's shared watercourses

Map of South Asia’s shared watercourses

In addition, other factors such as information sharing and lack of trust has exacerbated the differences. While most countries do not have reliable systems for data generation, those possessing some hydrological data consider them state secrets, restricting their exchange. Even when treaty obligations exist, data-sharing practices are ad hoc, and the range of information shared is limited. Thus, negotiating new transboundary water treaties amongst the South Asia countries has become a daunting task, and enforcing existing ones remains a real challenge.

With the above constraints in the background, the monograph provides an overview of the notion of water security in South Asia, and discusses the challenges as well as the opportunities for establishing governance frameworks for shared watercourses in the region.

The introduction of the monograph begins with an analysis of the concept of water security, and how the concept emerged and spread as a world-wide and complex phenomenon. It also discusses the challenges the concept imposes in designing and implementing governance regimes for shared watercourses. To further set the stage and focus, and to establish a better appreciation of the challenges, the introduction then discusses the geopolitical setting of the region.

The first part of the monograph starts by discussing the treaty practices in South Asia regarding their shared watercourses. Each instrument is presented as a unique document and effort, finalized after lengthy negotiations with each of the riparians’ specific objectives, interests and strategies in mind. In that context, the monograph reviews the regimes for shared watercourses already in force, as well as those that are under discussion and consideration.

The Indus and the Ganges river basins are the two regimes that are currently in force. The discussion of the Indus Basin regime focuses on the historical background and the complexities involved in the unusually long process of the treaty negotiations. The discussion involves the role of the World Bank, which provided its good offices to the parties, and the reasons for success of the Bank’s intervention. This is followed by an analysis of the treaty provisions, particularly its unique dispute resolution mechanisms. In this context, the monograph also discusses the several cases of “differences” and “disputes” that have emerged between the two riparian parties─India and Pakistan─and analyzes how the treaty provisions facilitated their resolution. This part of the monograph also elaborates and critiques the role of the World Bank in the dispute resolution process.

The second regime in force discussed in the monograph relates to the Ganges Basin, including some of its tributaries. Several treaties have been concluded for the governance of the Basin. The monograph reviews and analyzes each of them, including the history of the negotiations and the main provisions of each treaty, with a critical analysis of implementation.

The discussion also covers the efforts in South Asia, which have been ongoing for several decades, to establish regimes to govern some other important shared watercourses. Negotiations amongst the riparian countries on these basins have been difficult and the outcomes have been poor. In this context, the monograph reviews the regimes pertaining to the Teesta and the Brahmaputra basins, and highlights the difficulties that have emerged.

The subsequent part of the monograph deals with the 1997 UN Watercourses Convention. It focuses on the position of each of the South Asian countries vis-a-vis the Convention, which, interestingly, none has become a party to. The monograph discusses the reasons for such positions, and analyzes the countries’ malaise, as well as their specific concerns regarding the Convention.

The conclusion of the monograph recapitulates and highlights the main problematic situations of South Asia’s shared watercourses and analyzes the prospects for addressing them. In so doing, the conclusion provides some concrete suggestions derived from experiences in other countries and shared basins. The conclusion also includes some recommendations that can assist in enhancing cooperation, mutual trust and understanding amongst the South Asia riparians, and strengthening and consolidating of their achievements on their shared watercourses.

The monograph is dedicated “To the memory of Professor Charles B. Bourne (1921 – 2012); one of the pioneers and innovators in the field of international water law.”

The entire article is available here.

 

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Mexico-U.S. Cooperation on the Colorado: Prioritizing Sustainability Under Minute 323

Monday, January 15th, 2018

The following essay is by Regina M. Buono and Jill Baggerman. Buono is a Non-resident Scholar at Rice University’s Baker Institute for Public Policy and a doctoral student at the LBJ School of Public Affairs at the University of Texas at Austin. She can be reached at regina.buono [at] utexas.edu. Baggerman is a fellow with the Robert Strauss Center for International Security and Law and the J.J. “Jake” Pickle Scholarship Program and is a graduate student at the LBJ School of Public Affairs at the University of Texas at Austin. She can be reached at kjmbaggerman [at] gmail.com.

 

Despite oft-seen headlines about “the wall,” immigration, and uncomfortable relations between the United States and Mexico, the countries continue to develop advanced cooperative strategies for governance and management of the Colorado River. On September 27, 2017, representatives from the U.S. and Mexico signed Minute 323, a new agreement under the 1944 Treaty governing the river, which is intended to create a more secure water future for Colorado River water users and support additional environmental restoration projects. The agreement is the product of longstanding collaborative efforts by environmental NGOs, water agencies, and governmental representatives from both countries and is designed as a successor to Minute 319, signed in 2012. Minute 319 created temporary measures to share shortages and surpluses between the parties, and provided a massive, experimental pulse flow to rejuvenate the Colorado Delta. (See here and here).

In a nutshell, Minute 323 authorizes mutually advantageous options to give the parties flexibility and facilitate longer-term planning of water storage and distribution under variable climate conditions. It provides for substantial investment in conservation projects in Mexico in exchange for additional water allocations to the U.S.  Some of the more prominent stratagems of the plan are described below.

Minute 323 delineates procedures for coordinating approaches to operating under specified tiers of high- and low-elevation reservoir conditions, allowing the parties to take advantage of wet times and avoid triggering shortages in dryer periods. This increases certainty for each nation in managing water demands, and provides for agreement on the provenance and communication of information regarding environmental conditions. The U.S. Bureau of Reclamation’s August 24-Month Study will be used to project the January 1 elevation of Lake Mead, thereby determining yearly basin-wide allotments. The agreement also establishes the Binational Water Scarcity Contingency Plan in which Mexico agrees to join the U.S. states in temporarily taking less water from Lake Mead in order to avoid future shortages. Implementation of the plan is contingent on completion of the drought contingency plan being developed by the lower basin states.

Building on the successes of Minute 319, Minute 323 also enhances Mexico’s ability to store its allotments in U.S. reservoirs according to three categories of reserves: “Emergency Storage,” a “Revolving Account,” and the Intentionally Created Mexican Allocation (ICMA). The agreement extends Mexico’s ability to defer any part of its water delivery when the act of responding to an emergency—such as an earthquake—limits its ability to use an allotment. The Emergency Storage, along with the Revolving Account (which includes water previously deferred under Minutes 318 and 319) and ICMA (water Mexico may defer based on conservation efficiencies or new water sources that decrease demand for Colorado River water), constitutes “Mexico’s Water Reserve.”

International Boundary and Water Commission Commissioners announce signing of a new Colorado River agreement, Minute 323 on September 27, 2017. Photo by the U.S. Bureau of Reclamation, available at https://www.flickr.com/photos/usbr/23522391918/in/photostream/, and used under a Creative Commons Attribution-ShareAlike 2.0 license.

Commissioners Roberto Salmon (left) and Edward Drusina of the Mexico-U.S. International Boundary and Water Commission Commissioners announce signing of a new Colorado River agreement, Minute 323 on September 27, 2017. Photo by the U.S. Bureau of Reclamation; Creative Commons Attribution-ShareAlike 2.0 license (https://www.flickr.com/photos/usbr/23522391918/in/photostream/).

Minute 323 provides a number of rules to structure and facilitate sustainable management of these reserves, including limitation on total annual deliveries and provisions for evaporation losses. Reserves are to be delivered when needed unless Lake Mead is at low-elevation conditions or the timing would affect the January 1 elevation projection. Mexico may use its reserves for any purpose; may create a reserve of up to 250,000 acre-feet (AF) through December 31, 2026; and may withdraw up to 200,000 AF annually. Of water stored as ICMA, 2% is reserved for environmental purposes in Mexico. Minute 323 defines precise institutional procedures for when and how relevant agencies will manage the accounting records and release water deliveries. Storage and release procedures are based on the projected elevation of Lake Mead, meaning that environmental conditions and a recognized need for accurate evaluation and understanding of those conditions remain at the forefront of the agreement.

Minute 323 addresses a number of other issues benefiting both nations but of particular concern to Mexico. The agreement lists tasks for the Binational Salinity Work Group to achieve over the next two years, including the modernization of salinity monitoring equipment and automatic reporting tools. The agreement also addresses Mexico’s concerns about daily flow variabilities by creating the Binational Flow Variability Work Group, tasked with a pilot program to use existing storage capacity at Morelos Dam to reduce variability.

U.S. water agencies pledged to invest $31.5M in water efficiency projects in Mexico in exchange for an additional 109,100 AF in water allotments. Water savings generated by these projects will accrue to Mexico, except for allotments exchanged to the U.S. and specified allotments for the environment and system water. The water transferred to the U.S. will reduce pressure on the lower basin U.S. states as they attempt to meet increasing water demands. As with Mexico’s Water Reserve, the agreement coordinates institutional procedures for how the parties will conduct the exchange proportionally and simultaneously through 2026.

Seeking to leverage the success of Minute 319’s “pulse-flow”, Minute 323 includes provisions for the environment, particularly the river delta. The parties renewed their commitment to the environment by agreeing to partner with a binational coalition of NGOs to generate 210,000 AF of water for environmental purposes in Mexico, and pledging millions of dollars to fund scientific research, monitoring, and restoration projects. Mexico will also provide water for continued habitat restoration and scientific monitoring in the delta through 2026.

In sum, Minute 323 is an encouraging development for management of the river. The agreement provides Mexico and the U.S. with additional procedures and resources required to meet environmental and user demands for Colorado River water. Mexico benefits from increased flexibility regarding management of its reserves, as well as improved rules on flow variability and funds for conservation projects. The lower basin states also substantially benefit from the water transfers, which will lessen demand pressure throughout the system. The formal involvement of NGOs at the negotiating table increases the institutional capacity of both nations, creating incentives and synergies to facilitate conservation projects. The agreement is an indication that relations over the Colorado River continue to be strong and cooperative, are supported by well-developed institutions and active stakeholder participation, and increasingly focus on environmental sustainability and mutually advantageous solutions. Minute 323 advances each of these objectives, demonstrating that both nations continue to negotiate in good faith, even while the broader relationship becomes strained.

 

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Disputes over International Watercourses: Can River Basin Organizations make a Difference?

Friday, July 21st, 2017

The following essay by Sabine Blumstein and Susanne Schmeier is a summary of a recently published book chapter titled “Disputes Over International Watercourses: Can River Basin Organizations make a Difference?”. Ms. Blumstein works as a Project Manager at adelphi. Ms. Schmeier is Coordinator for Transboundary Water Management at the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). They can be contacted at: blumstein[at]adelphi.de.

 

Book coverDisagreements or even full-fledged disputes over the use of water resources in shared basins have increasingly made headlines in the past years. Developments in the Mekong, Nile, Syr Darya, Indus and other basins have led more and more scholars, as well as policy-makers and journalists, to warn of the risk of water conflicts or even wars. This revives – albeit in a more informed manner – the water wars debate of the early 1990s. While much progress has been made since then – especially through the creation and institutionalization of cooperative arrangements in many shared basins – disputes nonetheless continue to occur. And they do occur even in basins with River Basin Organizations (RBOs) in place, which have often been set up to solve, mitigate or prevent such disputes.

However, research on transboundary river basin management as well as empirical evidence from basins around the world suggest that RBOs do make a difference. They provide a variety of direct and indirect mechanisms for dispute resolution, as discussed in a recently published chapter which appeared in “Management of Transboundary Water Resources under Scarcity. A Multidisciplinary Approach”. In this chapter, the authors shed light on how RBOs engage in the solution of disputes that arise over water resources in transboundary basins. And they show that it is not dispute-resolution mechanisms in the narrow sense – often identified as the key if not the only instruments RBOs provide – that make a difference in whether a conflict is solved peacefully in a cooperative manner. Instead, it is the broader cooperative framework of RBOs that matters.

The authors review existing dispute resolution mechanisms of international RBOs around the world in a comprehensive manner. Their research indicates that more than 50% of the 121 analyzed RBOs have a dispute resolution mechanism in place – seemingly a good starting point. Among those, they identify three broader categories of RBO dispute resolution mechanisms: bilateral negotiations between those RBO members involved in a disagreement; RBO-internal mechanisms; and external actors’ involvement. Often, states have opted to establish more than one step in the respective dispute-resolution mechanism, structuring the processes in two instances with different mechanisms to be applied. For instance, bilateral negotiation between disputing parties (facilitated by the RBO) are often followed by a possible engagement of external actors – both 3rd party mediators and judicial ones.

The authors also provide explanations for why dispute resolution mechanisms vary around the world (in terms of existence in the first place, but also in design). Often, it is the history of cooperation (also beyond the water sector) that determines both the existence as well as the exact design of dispute resolution mechanisms. The high share of dispute resolution mechanisms in African RBOs, for example, can be explained by the past conflicts found in many African basins as well as the high presence of international donors, which often consider well-defined dispute-resolution mechanisms as a prerequisite for successful cooperation. In Europe, on the other hand, the existence of cooperation mechanisms (including specific instruments for solving disputes) in many issue-areas has limited the need for well-defined dispute resolution mechanisms within specific basins and RBOs.

Regional distribution of dispute-resolution mechanisms in RBOs

    Regional distribution of dispute-resolution mechanisms in RBOs

In the second part of the chapter, the authors analyze two conflicts in greater detail in order to shed more light on how exactly RBOs make a difference in solving or mitigating disputes in shared basins. For the Mekong River Basin, they find that while the Mekong River Commission’s (MRC) dispute resolution mechanisms themselves (see Art. 34 and 35 of the 1995 Mekong Agreement) might seem insufficient for addressing issues as complex as recent hydropower developments and related inter-state conflicts, the MRC provides ample other tools for ensuring that such disputes get addressed in a cooperative manner and on the basis of comprehensive technical data and information. Although having been criticized by many scholars, the MRC’s Procedures for Notification, Prior Consultation and Agreement (PNPCA) and the processes established around them (e.g. the identification of environmental and socioeconomic baselines, the establishment of guidelines for impact mitigation, etc.) have ensured that disagreements have been handled in a rather cooperative manner. This is particularly obvious if compared to similar situations of unilateral hydropower development in other basins around the world.

For the Nile River Basin, the authors find that the Nile Basin Initiative (NBI) did not directly contribute to diplomatic negotiations or any other form of direct resolution of the conflict around the Grand Ethiopian Renaissance Dam (GERD), which can partly be explained by the absence of any NBI dispute resolution mechanism. In addition, the lack of any notification mechanism or requirement to exchange data/information on planned infrastructure measures which could potentially impact downstream countries, prevented the NBI to play any significant role in averting the dispute in the first place. Despite this limited role in conflict prevention and direct diplomatic engagement, NBI played an important role in defusing the conflict through broader activities around data and information sharing and increasingly distributing this knowledge to the broader public. The RBO’s activities regarding knowledge distribution and more neutral reporting through national media is an important contribution to de-securitize national discourses around the construction of GERD and hence a precondition for any final resolution of the dispute.

While the findings reveal that the existence of specific dispute resolution mechanisms in a narrow sense does not necessarily influence the success of dispute resolution and depends on a number of other intervening factors, RBOs as a whole do matter in 2addressing water-related conflicts. This is because RBOs provide a range of instruments beyond pure dispute resolution mechanisms: amongst others, they provide platforms for negotiation and exchange, data and information exchange or notification procedures. These instruments are of key importance to solve, contain or even prevent conflicts. Water practitioners and policy actors should therefore not exclusively focus on the specific dispute resolution mechanisms provided by RBOs but be aware of and actively use the broader repertoire of governance instruments provided by RBOs to avoid and solve evolving disputes in transboundary river basins.

 

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The Fairness ‘Dilemma’ in Sharing the Nile Waters: What Lessons from the Grand Ethiopian Renaissance Dam for International Law?

Friday, June 30th, 2017

The following essay by Dr. Zeray Yihdego is a summary of his recently published monograph (under the same title), which appears in Vol. 2.2, 2017, pp. 1-80, of Brill Research Perspectives in International Water Law. Dr. Yihdego is a Reader in public international law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego [at] abdn.ac.uk.

The Nile, the longest River in the world, is shared by eleven riparian states, including Egypt, Sudan, South Sudan and Ethiopia.  Ethiopia contributes about 86% of the Nile waters, while Egypt (and to a certain extent Sudan) rightly or arbitrarily use most of the waters. Rightly because the climate and dependency of the two downstream countries on the Nile may be used to justify their historic or existing (lion) share. Arbitrary because other riparian states with millions of people who live within the basin are denied their equitable share of Nile water resources and socio-economic development needs. The construction of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia on the Blue Nile is justified by Ethiopia based on equitable utilisation and crucial development needs, while questioned (until March 2015) by Egypt as a threat to its ‘historic’ water use rights.

This monograph articulates the key arguments and messages of enquiring into the fairness dilemma in connection with the construction, reservoir filling, and to some extent, future operation of the GERD, in light of relevant colonial-era Nile treaties, post-1990 Nile framework instruments, and international water law.

Nile_Map_UpdatedAfter providing factual, political and historical context to the GERD case in the Introduction, the monograph sets out the theoretical and normative framework around Thomas Franck’s fairness principle, and international water law (IWL), as primarily featured in the 1997 United Nations Watercourses Convention (UNWC). Franck’s theory of fairness uses procedural legitimacy (or right process) and distributive justice as two fundamental features of fairness.  These are supported by the rejection of making absolute claims and the possibility of accommodating inequality among states, as caveats to the fairness principle. It is argued that IWL, in general, and the UNWC provide rules and principles that specifically fit into the principle of fairness in all its aspects, although there is no evidence to suggest that inequality is tolerated or promoted in international (water) law.

Given that none of the Nile basin states is a party to the UNWC, and notwithstanding the relevance and application of customary international water law to the GERD, the monograph resorts to dealing with the Nile Basin Initiative and the Nile Basin Cooperative Framework Agreement (CFA), and argues that the CFA, either as a treaty regime or a codification of customary watercourses law, represents an emerging Nile basin legal framework with a potential to addressing questions of fairness in the basin. As the CFA has not entered into force and Egypt and Sudan do not constitute part of the process, however, the fairness of the GERD cannot be judged form the CFA perspective.

Following a thorough investigation of the fairness of the 1902 Nile Treaty, the 1993 Ethio–Egyptian Framework instrument, and the tripartite Declaration of Principles (DoPs) on the GERD signed by Ethiopia, Sudan and Egypt in March 2015, the monograph submits that the 1902 and 1993 instruments do not provide a fair content and system for the concerned parties, albeit for different reasons. While the 1902 Nile Treaty is inherently arbitrary, and thus not compatible with the notion of fairness, the 1993 instrument incorporated modern principles of IWL, but not sufficiently, and lacks specificity of rights and duties of the two countries.  In contrast, the DoPs is founded on the globally accepted principles and rules of IWL and has

Grand Ethiopian Renaissance Dam

Grand Ethiopian Renaissance Dam

embraced both relevant content and legitimate process. The content of the DoPs includes the adoption of equitable utilisation and no significant harm principles. Similarly, the process agreed to in the DoPs includes the duty to exchange data and information, establishment of a National Technical Committee, the use of foreign consultancy firms and the use and endorsement of the work of an International Panel of Experts (IPoE).  All these, although not without challenges, have been negotiated in good faith, with equal participation of all concerned.

Based on this analysis, the monograph submits that:  the GERD is a symbol of a fair share of the Nile waters, the realization of which depends on, inter alia, an appropriate economic return and prevention of significant impacts; although application of the fairness principle can be complex, the notions of procedural fairness and distributive justice can be applied to define and delineate the principle with reference to a specific treaty regime; despite historical or existing injustice, a fair share of natural resources can bring sustainable and durable peace in inter-state relations.

The entire article is available here.

 

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