Archive for the ‘Water Conflicts’ Category

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.

AJIL Unbound Symposium on Interstate Disputes Over Water Rights

Tuesday, May 25th, 2021

This essay is written by Gabriel Eckstein, Professor of Law at Texas A&M University, director of the TAMU Law Program in Energy, Environmental, and Natural Resources Systems, and director of the International Water Law Project. He can be reached at gabrieleckstein [at] law.tamu.edu.

Disagreements over the management and allocation of transboundary freshwater resources have become increasingly prominent in international relations. Serious diplomatic tensions surround management of the Jordan, Mekong, Nile, Rio Grande, Silala, Syr Darya and Amu Darya, and Tigris and Euphrates rivers, to name just the most prominent examples among the world’s more than 300 shared watercourses. Nor is there any reason to think tensions will subside in the future.

In many parts of the world, demand for freshwater already exceeds accessible supplies (here). Water use globally has more than tripled since the 1950s, growing at more than double the rate of population growth over the same time period (here). Over the next thirty years, global demand is expected to increase by another 20 to 30 percent (here). These basic realities heighten the potential for disagreements and conflicts between riparian states.

Such disputes can escalate into larger regional conflicts. In the Aral Sea Basin, the discord between Tajikistan and Uzbekistan over the Rogun Dam has raised concerns over broader regional destabilization and even inter-state violence. Disagreement over the Xayaburi Hydropower Project (XHP) on the Mekong River, albeit contested with less rhetoric than the Rogun confrontation, has made many observers fear for the stability and the economic development of mainland Southeast Asia. And recent confrontations between Afghanistan and Iran have led to the outbreak of local violence and occasionally strained relations between the two states in an already fragile region. 

Despite mounting tensions among states, armed conflicts over transboundary freshwater have remained relatively limited to date. Yet growing water needs and dwindling supplies, climate change, shifting developmental and environmental priorities, and other concerns are straining cross-border hydro relations. Whether disagreements over shared freshwater resources will continue to be resolved peacefully will depend, in part, on the viability, durability, and flexibility of international law to prevent and resolve such disputes.

AJIL Unbound by Symposium, a publication of the American Society for International Law, recently commissioned a series of articles on Interstate Disputes Over Water Rights. The articles examine the role and relevance of international water law (IWL) for peacefully resolving disputes over transboundary freshwater resources. Taken together, the series provides an impressive breadth of approaches, from close examination of contemporary disputes over transboundary freshwater resources to the interpretation and application of specific IWL norms and principles. The series also features the perspectives of scholars from Africa, Asia, Europe, and North America.

The compilation, which is entirely open access, includes:

The diverse articles in this Symposium illustrate that the international law applicable to transboundary freshwater resources is at once expansive and focused.  While covering a broad array of topics and scenarios, from negotiation and data sharing to norm creation and litigation, it is also quite narrowly tailored to address the singular resource of freshwater in specific settings.  As developed as the regime may be, the essays make clear that it must continue to evolve and react to changing circumstances, such as climatic variability, growing demand, and increased knowledge about freshwater resources.

Water is one of the few true essential requirements for life. Thus, it is no surprise that disagreements among nations over this precious resource will continue and likely grow in the coming years.  Nevertheless, it is important to keep in mind that water management has more often been a source of cooperation than of conflict (here).  And while conflicts have certainly occurred, the vast majority of disputes have been resolved peaceably and in accordance with international law treaties and norms. Despite many challenges, international water law remains a vital and often effective guide for nations as they seek to resolve difficult and important water allocation disputes.

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.

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.

 

Midriver States: An Overlooked Perspective in the Nile River Basin

Monday, September 26th, 2016

The following essay is by Aletta Brady, Member of the U.S. National Commission for UNESCO Youth Working Group. She can be reached at clairealettabrady@gmail.com.

The majority of research on transnational cooperation in the Nile River basin (and elsewhere) has failed to note the distinct perspective of midriver states. Most academic literature on transboundary river basins classifies states solely as upriver or downriver states, even in instances where countries, geographically and behaviorally, are midriver states.  Midriver states have an important position and role to play in transboundary river basins as they intimately understand the needs and concerns of both their upriver and downriver neighbors. Midriver states also have a more complex perspective of their “rights” based on their combined upstream/downstream interests. This aspect is being ignored under contemporary analyses.

An upriver state is a country out of which water in a river flows. Such states generally advocate for their right to the equitable and reasonable utilization of the waters of a transboundary river. A downriver state is a country into which a river flows. Downriver states tend to advocate for the principle of no significant harm, desiring water flow upriver to be preserved in its near-natural state until it reaches their downriver territory. A midriver state refers to a country that has water from a discrete river flowing both into and out of its territory. Midriver states can espouse the desires of both upriver and downriver states, depending on whom they are dealing with.

river_nile_mapThe Nile River basin has three mid-river states: Sudan, Uganda, and South Sudan. The academic literature has classified these states based on historical political allegiance and economic interest. For example, Sudan is usually categorized as a downriver state largely based on its historic allegiance to Egypt. Similarly, Uganda’s advocacy for a fair share of the Nile River, along with Ethiopia, has led to its classification as an upriver state. These binary categorizations, however, do not accurately characterize the behavior and interests of these two states in the Nile Basin.

Sudan’s actions and statements over the course of the past century support a much more complex analysis. Consider, for example, that in 1929, Sudan rejected the Nile Waters Agreement (NWA)—an agreement that allocated shares of the Nile River waters, giving the majority share to Egypt—between Egypt and Great Britain. Then, in 1959, Sudan changed its position and signed the Agreement for the Full Utilization of the Nile Waters with Egypt. In 1991, Sudan signed a bilateral agreement with Ethiopia, to the dismay of Egypt, that established a joint technical committee for data sharing and exploring mutually beneficial projects, and that recognized a commitment to the principle of equitable and reasonable utilization of the Nile waters. In 1996, Sudan once again sided with Egypt in opposition of Project D3—an Ethiopian proposal to establish legal cooperation and water sharing among all of the basin states. But, in 2012, Sudan expressed support for Ethiopia’s Grand Ethiopian Renaissance Dam (GERD) against the counsel of Egypt. Sudan’s vacillating allegiance between Egypt and Ethiopia is evidence that Sudan acts neither consistently in the interest of an upstream state nor in the interest of a downstream state, but rather fluctuates between the two because it is, quite literally, caught in the middle. Sudan wants both to utilize the water within its boundaries before it flows downstream, and preserve water flow into its territory from upstream neighbors.

Similar to Sudan, Uganda’s position on which Nile neighbor to support has fluctuated. The Ugandan government opposed Egypt’s 1929 NWA. But, when Egypt supported the joint-technical institutions, HYDROMET (1967-1992) and TECCONILE (1993-2002), Uganda became a member alongside Egypt. Ethiopia and Burundi wanted legal cooperation that granted upstream states an equitable water share of the Nile River and saw TECCONILE, a technical institution, as a distraction. In comments recorded from the 1995 annual meeting of the Council of Ministers for Water Affairs (Nile-COM), Burundi explained that it would not join TECCONILE unless it “completed [an] institutional framework… [that] must guarantee equitable benefits to all.” Uganda also supported Egypt’s UNDUGU organization that launched in 1983, which was opposed by the majority of Nile upriver states.  In 1993, the Ugandan government opposed the implementation of Project D3, a legal project intended to investigate each state’s need for water, which was also supported by a majority of Nile upstream states.  In those same Nile-COM MEETING notes, a Ugandan representative criticized upriver states for being “not yet sure of the benefit from ongoing” transboundary Nile collaborations, and described the possibility of Project D3 as an “optional utilization of the Nile River.” Uganda warned against D3 “paralyz[ing] other activities, especially those that could lead to large investments in the basin.” But, in 2014, during an interview that I conducted, a Ugandan official explained that Ethiopia’s GERD “was the right thing to do,” even though, at the time, Egypt vehemently disapproved of the project.

In addition, Ugandan and Sudanese government officials, in similar interviews, identified both the desire to ‘utilize’ and ‘maintain’ the waters as high priorities, underscoring their intermediary positions as midriver states in the basin. In contrast, Ethiopian officials ranked the desire to utilize Nile waters as more important than the desire to maintain the quantity of the water, which aligns with their position as an upriver state advocating for the principle of equitable and reasonable utilization. Following suit, Egyptian officials emphasized maintaining the quantity of water as more important than utilizing the water, which aligns with their advocacy for the principle of no significant harm.

When South Sudan gained statehood in 2011, media outlets and publications immediately began discussing South Sudan as an upriver state. However, while South Sudan’s time as an independent nation has been brief, it has already demonstrated tendencies of mixed allegiances fluctuating between its downstream and upstream neighbors. For example, soon after its independence, South Sudan’s Minister of Irrigation and Water Resources stated in an interview (see here) that it was “inevitable” that South Sudan would sign the CFA, which has long been opposed by Egypt. Since that time, however, South Sudan has yet to sign that accord, which some speculate is due to its relationship with Egypt. South Sudan’s emergence as the newest basin state should be discussed as an addition to the midriver cohort in the basin rather than an additional upriver state.

Where transnational basin agreements and negotiations are approached as bilateral in nature (with the two main positions of upriver and downriver states), negotiators will likely miss key interests and perspectives of the intermediary stakeholders. Moreover, approaching negotiations with a bilateral framework puts midriver states in the uncomfortable position of choosing which neighbor to side with, even when their interests do not fully align. This could lead to midriver states reneging on agreements, or shifting allegiances, as seen in the Nile River basin. This, in turn, could increase tensions. Accordingly, a new trilateral framework encompassing the midriver classification should be utilized to better describe the relationships and interests of nations in the midriver position.

 

The Kishenganga Awards and their Contributions to International Water Law

Wednesday, August 5th, 2015

The following post is by Dr. Mara Tignino, Senior Lecturer and Coordinator of the Platform for International Water Law, Faculty of Law, University of Geneva. She can be reached at Mara.Tignino [at] unige.ch.

 

In May 2010, Pakistan initiated an arbitration proceeding against India concerning the construction of a hydroelectric infrastructure project (“KHEP”) undertaken by India on the Kishenganga River—part of the Indus River basin. The KHEP is situated in India-administered Jammu and Kashmir in north-west India, about 12 kilometres upstream of the Line of Control with Pakistan-administered Jammu and Kashmir, and is aimed at producing hydropower via a diversion of the River’s flow. Once completed, the diverted waters would flow through a tunnel around 23.5 kilometres long toward a power facility situated 666 meters below the Kishenganga dam. The water will then be redirected into Wular Lake and the River Jhelum, which flows into the territory of Pakistan. The falling water would drive turbines producing about 330 megawatts of electricity. According to Pakistan, the KHEP will have an impact on water flow downstream in Pakistan and affect its own production of hydropower.

Kishenganga Hydroelectric Project (Source: Partial Award, p.51)

Kishenganga Hydroelectric Project (Source: Partial Award, p.51)

The uses of the Indus River and its tributaries are regulated by the Indus Waters Treaty, adopted by India, Pakistan and the International Bank for Reconstruction and Development (IBRD) in 1960. Article IX of the treaty provides for the establishment of mechanisms for the settlement of differences and disputes between the two States. As a result of Pakistan’s request, an arbitral tribunal composed of seven arbiters was established under article IX, which subsequently issued four decisions: an Order on Interim Measures in September 2011, based on an application made by Pakistan in June 2011, a Partial Award in February 2013, a Decision on India’s Request for Clarification or Interpretation in May 2013, and a Final Award, issued in December 2013. All four decisions were adopted unanimously.

Signed after ten years of negotiations, the Indus Waters Treaty represented an ambitious landmark in the development of international water law. The treaty is emblematic of the potential for international law to facilitate cooperation in the governance of international watercourses. As emphasized by the tribunal itself, the treaty has been continuously applied for over 50 years, despite recurring hostilities in the Kashmir region, including three episodes of direct armed conflict between India and Pakistan. In fact, while Pakistan had made use of the dispute settlement procedures of the treaty once before—in 2006, it requested the intervention of a Neutral Expert under article IX in the case of the Baglihar hydropower project—this was the first time that an arbitral tribunal had been established to settle a dispute concerning the application and the interpretation of the treaty.

Much as the treaty itself contributed to the development of substantive law on international watercourses, both the process and outcome of the arbitration offered noteworthy innovations in the settlement of disputes on transboundary water resources:

  1. In procedural terms, the inclusion of an engineer among the members of the tribunal offered an interesting approach to balancing the needs for various forms of expertise in the determination of the issues (the Neutral Expert charged with resolution of the 2007 Baglihar dispute was also an engineer). The presence of technical experts as equal participants in dispute settlement mechanisms facilitates the understanding of complex factual issues related to the construction and exploitation of hydropower infrastructures.
  2. From the perspective of substantial international environmental law, the recognition in the award of an obligation to ensure a minimum environmental flow in an international watercourse offers a possible indicator of future developments. The tribunal held that India could divert waters from the Kishenganga River, but that it had to ensure a continuing minimum flow rate of 9 cubic meters of water per second in the River itself (Final Award, p.326). Parties must provide the Permanent Indus Commission with daily data on River flows and the information on the inputs and withdrawals of water from the reservoir. According to the arbiters, the Commission is the most appropriate mechanism to ensure the exchange of data and monitoring of the uses of the tributaries of the Indus River (Final Award, par.121).
  3. Strikingly, the judges rejected the application of the precautionary principle to the case. Pakistan had argued that the flows of the Indus tributaries at the Line of Control are difficult to measure, and the Parties gave different estimations of future minimum flow levels. The tribunal recognized future flows levels would be uncertain, depending both on future uses and on factors outside the control of either India or Pakistan, such as climate change (Final Award, par.117). Rather than basing their judgment on the precautionary principle, they chose to account for this uncertainty by requiring India to finalise the KHEP in a manner that would allow for responsiveness to future variations in flow levels.
  4. Finally, the tribunal offered a lynchpin for the sustainability of this approach by creating a window for reconsideration: if, within seven years after the diversion of the Kishenganga River is finalized, one of the Parties considers it necessary to review the quantity of the minimum environmental flow as decided by the arbitral tribunal, the flow will be submitted to the Permanent Indus Commission or other mechanisms established by the Treaty (Final Award, par.119).

Members of the Court of Arbitration, 20 August 2012 Standing : H.E. Judge Peter Tomka, Judge Bruno Simma, Professor Lucius Caflisch, Professor Jan Paulsson. Seated : Sir Franklin Berman KCMG QC, Judge Stephen M. Schwebel (Chairman), Professor Howard S. Wheater FREng

Members of the Court of Arbitration, 20 August 2012
Standing: H.E. Judge Peter Tomka, Judge Bruno Simma, Professor Lucius Caflisch, Professor Jan Paulsson. Seated: Sir Franklin Berman KCMG QC, Judge Stephen M. Schwebel (Chairman), Professor Howard S. Wheater FREng

The decisions of the arbitral tribunal specify the general obligations related to the construction of hydroelectric projects upstream and downstream of an international watercourse. Thus, the Tribunal affirms that “There is no doubt that States are required under contemporary customary law to take environmental protection into consideration when planning and developing projects that may cause injury to a bordering State” (Partial Award, par.449), and takes note of the principle of sustainable development, the obligation to carry out a transboundary environmental impact assessment and the broader duty to avoid transboundary harm (Partial Award, pars. 448-451). In considering these obligations both in terms of conventional law, according to the Indus Waters Treaty, and in terms of customary law, the arbiters have contributed to the development and clarification of general principles of international water law relating to the environmental protection of transboundary water resources.

The Helmand River and the Afghan-Iranian Treaty of 1973

Thursday, July 23rd, 2015

The following post is by Dr. Glen Hearns, principle with Eco-Logical Resolutions, a consultancy based in Vancouver, Canada, specializing in resource management and decision making, facilitation, conflict resolution and strategic planning. Between 2012-2014, Dr. Hearns served as transboundary water advisor to the government of Afghanistan. He can be reached at ghearns [at] ecol-logical-resolutions.com.

 

The Helmand River and its major tributary, the Arghandab, drain 43% of Afghanistan including most of the southern part of the country. It has an average discharge of approximately 140m3/s, but is highly variable both annually and seasonally as the waters are primarily snow melt from the ridge of mountains running through the center of the country.  These include the Sia Koh Mountains and the Parwan Mountains northwest of Kabul.

The Helmand River flows some 1150 km before reaching the Sistan wetlands, a series of shallow marsh lakes (Hamuns) in southwest Afghanistan and eastern Iran (Figure 1). During high flows they form a series of interconnected lakes that flow in an anti-clockwise manner from Afghanistan to Iran. The wetlands are fed predominantly by Afghan rivers, the largest of which is the Helmand, and form a particularly diverse ecosystem important for migratory birds. Just prior to reaching the border, the Helmand River bifurcates at a point known as Helmand Fork. The Shele Charak River (called the Common Parian in Iran) flows northward, forming the border between Iran and Afghanistan and subsequently branches out to form the Hamun-e-Puzak. The other part of the fork flows westward into Iran, forming the Sistan River and eventually draining into the marshy lake, Hamun-e-Helmand (Figure 1).

Figure 1. Sistan Wetlands and Helmand Basin (Source: Wikipedia Maps)

Figure 1. Sistan Wetlands and Helmand Basin (Source: Wikipedia Maps)

The 1973 Helmand River Treaty is the only agreement that Afghanistan has that specifically addresses water allocations. The Helmand River and Sistan area have been the source of contention since the late 1800s. Various attempts to resolve the disputes were undertaken, including with U.S. assistance to form a fact-finding Helmand River Delta Commission, which developed recommendation in 1951.  The 1973 agreement follows those recommendations to supply Iran with an average 22 m3/s, and includes an additional 4 m3/s for “goodwill and brotherly relations”. The Treaty also establishes a new Helmand Commission to administer the provisions of the agreement (Art. VIII).  Monthly flow deliveries are specified in Article II of the treaty for “normal water years”, which is defined in Article 1(c) as a year with total flows upstream of Kajaki Dam at Dehrawud that are at least 5661 mcm between 1 October and the following 30 September. The Helmand Treaty is flexible in that in low flow years, provisions are made to reduce the flow allocated to Iran in proportion to their measured deviation from a normal year for any given month or months (Art. IV).

The Treaty specifies where Afghanistan is to deliver water flows to Iran: i) the boundary line at the Sistan River, and ii) between markers 51 and 52 on the Helmand River (Art. III(a)).  In addition to the quantities specified, Afghanistan must supply water of a quality that can be treated, if necessary, for use in irrigation and domestic use (Art. VI). This requirement effectively places the burden on Iran to treat the water for its purposes.

Of importance is that Afghanistan retains all the rights to the balance of the water and may “make such use or disposition of the water as it chooses” (Art. V). This privilege, however, must be balanced with Article XI, which acknowledges the importance of continued flow to the Helmand Delta, and admonishes that if flow is stopped, the Commissioners must develop plans to minimize the problem.

What is very clear is that Iran can make “no claim to the water of the Helmand River in excess of the amounts specified in this Treaty, even if additional amounts of water may be available in the Helmand Lower Delta and may be put to a beneficial use” (Art. 5). Consequently, if it is shown that Iran is taking more than 811 mcm/yr (per Article 3), it would be in clear breach of the Treaty.

Both Iran and Afghanistan have the ability to monitor each other to ensure that they remain in compliance with the Treaty. The Treaty specifies that during low flow years, the Iranian Commissioner has access to flow measurements at Dehrawud, and is even allowed to observe the flow and take his own measurements (Protocol 1, Art. 5). Additionally, both the Afghan and Iranian Commissioners are to jointly measure the delivery of water to Iran (Protocol 1, Art. 6). In practice, information from Dehrawud is made available on an ongoing basis, albeit not consistently, as the Commission does not always meet every year. Also, delivery of water to Iran is not adequately monitored according to Afghan officials.

Differences between the parties must be resolved through diplomatic means, or thereafter with the good offices of a third party. Failing resolution, Protocol 2 outlines a detailed arbitration process that includes fact-finding and creation of an Arbitration Tribunal. Should the parties not agree upon a suitable Chair of the Arbitration Tribunal, the United Nations shall be requested to appoint one.

While the Iranians have suggested reviewing the Treaty, the instrument has no sunset clause and exists in perpetuity. Also, the Treaty does not cover groundwater, which is also being extracted by Iran.

Regardless of the challenges, the status of the Treaty is secure. The Helmand Commission meets, hydraulic information is exchanged (but not from Dehrawud station as it has been out of commission for many years), and in 2001 the Iranians went to the United Nations to complain that Afghanistan was not releasing water from Kajaki and were in breach of Article 5 of the Treaty. The language used in the complaint demonstrates the Iranians feel the treaty is valid and in force.

The major issue today in the Helmand Basin is Afghanistan’s pursuit of water resource development projects. It is renovating Kajaki Dam, and is constructing Kamal Khan on the Lower Helmand River. It is also considering constructing Bakshabad Dam on the Farah River. These developments are unlikely to go over well with neighbouring Iran, which may well be taking more than its “guaranteed” share of water under the Helmand Treaty.  A 2006 study conducted, in part, by Iran’s Water Research Institute of the Ministry of Energy, indicated that Iran had developed storage and irrigation infrastructure from the Helmand and Shele Charak rivers with a delivery capacity in excess of what is permitted under the Treaty. The report goes on to indicate that the 1973 Treaty has very limited value for Iran and mainly guarantees drinking water supply.

While Afghanistan badly needs development, how it will balance that objective with the needs of Iranian water users, as well as the environmental needs of the Sistan wetlands, will be a delicate act.

State of Palestine Accedes to UN Watercourses Convention

Wednesday, January 7th, 2015

Jordan River Basin

Jordan River Basin

By Gabriel Eckstein

 

On 6 January 2015, the Secretary-General of the United Nations, acting in his capacity as depositary for the UN Watercourses Convention, issued a formal notice that the “State of Palestine” had acceded to the Convention and that the treaty would enter into force for the “State of Palestine” on 2 April 2015. That will make the “State of Palestine” the 36th Party to the UN Watercourses Convention. The Convention formally went into force on 17 August 2014 (see here).

The move was part of a broad Palestinian effort to join eighteen international treaties (see here and here). While Palestinian membership in the Rome Statute of the International Criminal Court has overshadowed all of the other ratifications, the accession to the Watercourses Convention is noteworthy in a number of respects.

Of the 36 Member States, nine (including the “State of Palestine”) are from the Middle East and North Africa, indicating that a substantial percentage of the region’s nations are committed to the terms and norms of the UN Watercourses Convention. In addition, with this accession to the Convention, Israel is now the only state in the Jordan River Basin to not have joined the treaty. Jordan, Lebanon, and Syria – all riparians to the Jordan River Basin – became Parties to the Convention in 1999, 1999, and 1998, respectively (see here).

Whether this reality will have any bearing on future hydro-diplomacy or management of the Jordan River remains to be seen. At the very least, it suggests that the Palestinians and their Arab neighbors will look to the Convention to guide them on any future transboundary water-related negotiation. To some extent, this could aid them in reaching consensus among themselves, as well as forge a concerted front in their dealings with Israel. On the other hand, it may give Israel an advantage in future negotiations since they have bound themselves to work within the Convention’s framework while Israel has not.

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.

Water Security, National Security and Israel’s Separation Wall: The Case of Battir

Wednesday, March 6th, 2013

The following post is by Elana Katz-Mink. Ms. Katz-Mink has an M.A. in Environmental Studies and Water Management from Ben Gurion University and is a J.D. candidate at American University Washington College of Law. She can be reached at ekatzmink [at] gmail.com.

Battir agricultural terraces. Photo courtesy of The Advocacy Project.

Only a few miles from Jerusalem, Bethlehem, and the Green Line, residents of the Palestinian village of Battir practice an ancient agricultural water-use technique dating back to the Roman Period. Agricultural terraces, which were developed to take advantage of natural mountain springs, cover 2,000 hectares around the village where residents cultivate produce for their livelihoods and sustenance.

Over the centuries, the terraces have increased the land’s fertility, preserving the area’s agricultural heritage and environmental integrity (see NY Daily News article and FoEME Report). Israel is currently planning to build the separation wall on the edge of Battir, separating Palestinian farmers from their fields.  If constructed, the wall will severely imperil the hydrology and ecology of the area (see Report of the Israel Nature and Parks Authority [in Hebrew]).  This type of harm is not novel or unique.  In virtually any location around the world, the isolation and fragmentation of landscape can have deleterious effects on the diversity and abundance of flora and fauna.  It can also be disastrous for a region’s water security because a sustained, natural flora presence can help maintain both the water table balance and groundwater quality.  In addition, a wall can block the natural flow of floodwater from its usual drainage-route resulting in flooding, soil erosion, and habitat destruction.

These grave consequences are further compounded by the very real effects the wall can have on human residents of the area. For example, this past winter in the town of Qalqilya, a Palestinian city in the West Bank, floodwater mixed with sewage as a result of the separation wall and inundated people’s homes and fields (see Ma’an News Agency story).  While events like these harm Palestinian residents on their side of the wall, they have serious consequences for Israelis as well.  Incidents like Qalqilya pollute the groundwater on which both Palestinians and Israelis rely for domestic, industrial, and environmental uses (see FoEME Report: A Sleeping Time Bomb).

In 2006 in the Palestinian village of Wadi Fuqin, Friends of the Earth Middle East (FoEME) marshaled evidence showing that construction of the wall would cause hydrological and ecological destruction.  Additionally, FoEME helped to orchestrate a joint effort by Wadi Fuqin villagers and the neighboring Jewish community of Tzur Hadassah that has temporarily stopped the wall’s construction in this area (see FoEME case study and JTA story).

Battir, unlike Wadi Fuqin, does not have a clear Israeli sister-city lying across the Green Line to protest the wall’s construction on their behalf; however, Battir may have a branch of the Israeli government in its corner.  In August 2012, the Israel Nature and Parks Authority published a report condemning construction of the separation wall in Battir because of the risk it posed to the ecological and hydrological integrity of the area (see Report of the Israel Nature and Parks Authority [in Hebrew]).  In a water-starved region, such a risk may prove extremely persuasive as Israel is forced to confront how its actions could affect one of its biggest national security concerns: long-term access to and supply of fresh water.  While Israel has typically recognized its national security as equivalent to its military security, the risk the wall creates could threaten the security of the nation in terms of its fresh water supplies, resources on which both Israel and the Palestinian Authority depend.

In 2007, Battir both brought suit in the Israeli Supreme Court (ISC) and requested Israel’s Finance Ministry to consider rerouting the wall.  The Finance Ministry has not yet ruled, but construction was halted in fall 2012 by the ISC when it ordered cessation and a timely response by the Ministry to the allegations of the Battir residents.  Generally, the ISC has held that the wall is a legitimate security need for Israel, despite the International Court of Justice’s advisory opinion finding the wall illegal under international law.  In a few rare instances, though, while maintaining the legitimacy of the wall, the ISC has ordered the route be changed or construction stopped and/or dismantled on grounds that the wall’s route would not fulfill its purposed security purposes (e.g., Beit Sourk, Bilin, Wadi Fuqin).  Nevertheless, these decisions are the exception, and the ISC consistently has accorded more weight to the Israeli Defense Ministry’s expressed military security concerns.

On December 13th, 2012, the ISC issued an interim decision ordering the Israeli Defense Ministry to submit plans for an alternate route for the wall in the Battir area within ninety days, necessitating consideration of the environmental impacts of the route.  The Israeli Defense Ministry has proposed a fence, rather than a stone wall, as a compromise that it says will reduce damage to the landscape.  Battir and conservation experts maintain that a fence will cause the same harm as a stone wall (see articles in Haaretz [in Hebrew] and the Environment And Climate In The Middle East blog).  The ISC has yet to issue a final decision.  While the interim decision is only a temporary win for the residents of Battir, it marks the latest case demonstrating the exception to the military security rule.  Perhaps, this decision signals a shift from the ISC’s military security rule to the consideration of water and environmental security concerns.  The final decision will be extremely significant for Battir, and potentially for the jurisprudence of national security.  Regardless of the final outcome, the interim decision mandating consideration of ecological impacts is an achievement in the continued struggle for recognition of water and environmental security as an integral part of national security.

 

Post Script (March 29, 2013)

Metal_FenceA metal fence was proposed as a compromise by the Israeli Ministry of Defense, but has not yet been accepted by the Battir residents, environmentalists, or the ISC.  Even if a fence were accepted it would not solve most of the ecological or hydrological issues that exist with a cement barrier. Often the structure of the fences that separate the West Bank and Israel entail much destruction in the surrounding area during the construction phase (uprooting of flora and fauna that help to clean water as it percolates to the water table).  In addition, a large ditch is usually dug on the West Bank side of the fence (the source of water flows) that would prevent water from reaching the sea.  Lastly, the road and fencing would still prevent the migration of flora and fauna in the area.