The Future of Africa’s Water Security

May 27th, 2012

Special thanks to Kavitha Pramod for co-authoring this essay

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

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

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

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

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

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

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

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

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

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

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

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

 

25 and Counting: Another Ratification for the 1997 UN Watercourses Convention

May 3rd, 2012

For those of you keeping a count, the 1997 Watercourses Convention now enjoys 25 parties [see Status of the Convention here]. On 30 April 2012, Denmark submitted its notice of accession to the Convention.  This comes on the heels of 6 other ratifications over the past 2 years: Burkina Faso, France, and Morocco in 2011; and Greece, Guinea-Bissau, and Nigeria in 2010. The other parties to the Convention include:  Finland, Germany, Hungary, Iraq, Jordan, Lebanon, Libya, Namibia, The Netherlands, Norway, Portugal, Qatar, South Africa, Spain, Sweden, Syria, Tunisia, and Uzbekistan. In addition, five nations have signed but not yet ratified the Convention: Côte d’Ivoire, Luxembourg, Paraguay, Venezuela, and Yemen.

Denmark is the first nation in 2012 to ratify the instrument. But it may not be the last. In 2011, Benin’s parliament authorized its government to ratify the treaty. Other countries also are considering ratification. If this rate continues, the treaty may enter in force in the next few years. Under Article 36(1) of the Convention, the treaty will become binding on all ratifying parties ninety days following the 35th ratification. That day may be coming soon.

Incidentally, it is interesting (but not surprising) that when it filed its notice of accession, Denmark also submitted a notice excluding from its accession application of the Convention to the Faroe Islands and Greenland [see notice here].

Outcome of the Nairobi Nile Council of Ministers Meeting – An Inevitable Consequence of a level-playing field?

February 14th, 2012

The following post is by Dr. Salman M.A. Salman, an academic researcher and consultant on water law and policy and former water law advisor to The World Bank. He can be reached at Salmanmasalman [at] gmail.com.

The Ministers of Water Resources of the Nile Basin countries (Nile Council of Ministers, or Nile COM) were supposed to hold an extra-ordinary meeting on January 27, 2012, in Nairobi, Kenya. The purpose of the meeting was to discuss the legal and institutional ramifications of the entry into force of the Nile Cooperative Framework Agreement (CFA). That meeting was requested by Egypt and Sudan, following signing of the CFA by six of the upper riparians, namely Burundi, Ethiopia, Kenya, Rwanda Tanzania and Uganda. Coincidentally, the CFA needs six ratifications to enter into force.

The Nile Basin Countries

In fact Egypt and Sudan had asked for that meeting back in July 2010, during the eighteenth annual meeting of the Nile COM in Addis Ababa, Ethiopia. They had wanted to reopen discussion on the CFA, but the upper riparians objected. Egypt and Sudan renewed their demand for the meeting during the nineteenth annual Nile COM meeting in Nairobi in July 2011. As a compromise, it was agreed that an extra-ordinary meeting would be held in Kigali, Rwanda, on October 27, 2011, in connection with the 3rd Nile Basin Development Forum.

About a week before the meeting was to take place, Egypt and Sudan asked for a postponement. The parties then agreed to hold the meeting in Nairobi on December 27, 2011. Yet again Egypt and Sudan asked for a postponement, to which the others reluctantly agreed. That meeting was to take place on January 27, 2012 in Nairobi.

On Thursday January 26, 2012, all of the Nile ministers of water resources arrived in Nairobi except those from Egypt and Sudan. And the two nations did not ask for another postponement. Angered and frustrated, the ministers of Burundi, Ethiopia, Kenya, Rwanda, Tanzania and Uganda, in addition to the representative of the Democratic Republic of Congo (which has not yet signed the CFA), decided to hold their own meeting, but under a different umbrella. They decided to meet as the Nile Equatorial Lakes Council of Ministers (NEL COM), one of the institutions established under the Nile Basin Initiative (NBI) with its head office in Kigali. Although Egypt and Sudan are also members of the NEL COM, it seems that the upper riparian ministers decided they have the authority to hold the NEL COM meeting, and not the extra-ordinary Nile COM meeting requested by Egypt and Sudan who were absent.

The second decision taken by the NEL COM was to upgrade the observer status of Ethiopia in the NEL COM to full member. No doubt, this upgrade solidified the NEL COM and strengthened it as a coalition force against the alliance established by Egypt and Sudan under the 1959 Nile Waters Agreement. That alliance was epitomized by the establishment of the Permanent Joint Technical Committee by the two countries under the 1959 Agreement, headquartered in Khartoum.

The NEL COM discussed and approved a series of measures regarding the NEL investment program, including the strategic plan 2012 – 2016; financing from the World Bank Cooperation for International Waters in Africa (CIWA); and the investment conference to be held with the development partners in June 2012 for hydropower and water storage facilities in the NEL countries.

NEL COM Ministers

The NEL COM then turned to the CFA and took three bold decisions which can be expected to have major ramifications on the relationship between the Nile River’s upper and lower riparians.

First, the NEL COM decided to go ahead with ratification of the CFA with the view of having it enter into force and effect, and thereafter to establish the Nile Basin Commission as prescribed in the CFA. This means that the ministers have reversed their earlier decision to delay the ratification of the CFA, in light of the Egyptian revolution of January 2011, so as to give Egypt and Sudan time to reconsider their position. The ministers also agreed that they would keep each other updated on the ratification process in their respective countries.

Second, the NEL COM instructed the Chair of the Nile COM (Ms. Charity Ngilu, Kenya Minister of Water Resources) to continue discussions with the three countries that have not signed the CFA (Egypt, Sudan and Democratic Republic of Congo) with the view of bringing them to ratify the Agreement; such discussions are to be concluded within sixty days.

Third, the ministers indicated their frustrations with the indecisiveness of Egypt and Sudan regarding the extraordinary meeting that the two nations requested but failed to attend, and which the ministers believed would have been an opportunity for dialogue and cooperation. The ministers instructed Mr. Stanislas Kamanzi, the Minister of Environment and Natural Resources of Rwanda and the current chair of NEL COM, to communicate these decisions to the members of the NBI (see story from The New Times here). The outcome of the meeting was included in the Nairobi Statement.

These are no doubt major decisions that will have far reaching consequences. Thus far, Sudan and Egypt have refrained from making any comments or issuing any statements. Perhaps the two lower riparian countries realize that the idea of the extra-ordinary meeting was not a good one, because the discussion would address the ramifications of the entry into force of the CFA, and not the areas of differences between the upper and lower riparians. Those differences concern the demand of Egypt and Sudan that the CFA include explicit reference to their existing uses and rights; clear provisions on prior notification; and that the CFA should be amendable either by a consensus or majority that includes both Egypt and Sudan. The upper riparians had rejected those demands. Now, they have decided to go ahead with ratification of the CFA.

It should be added that ratification of the CFA and its entry into force will create some legal problems related to the status of the NBI Secretariat after it is replaced by the Nile Basin Commission. This is because the programs, assets, and liabilities of the NBI will be inherited by a Commission that would not include Egypt and Sudan, both of whom are active members of the NBI.

The Nile Basin is clearly going through critical and uncertain times. The emergence of the upper riparians as a power to reckon with is, in my view, an inevitable consequence of a level playing field resulting from the NBI itself.

Will the Nile countries manage to resolve their differences in the next sixty days, or is the Nile heading towards more polarization and conflicts? This is what the next few weeks will tell.

You can find prior IWLP Blog posts on the CFA and NBI here, here, and here.

Nicaragua and Costa Rica Return to the ICJ for 3rd Case over the San Juan River

February 12th, 2012

On December 22, 2011, Nicaragua instituted proceedings in the International Court of Justice (ICJ) against Costa Rica for “violations of Nicaraguan sovereignty and major environmental damages to its territory” (see Nicaragua’s Application and  ICJ Press Release). This is the latest dispute in a string of conflicts between the two nations that has spanned more than a century, and the third presented to the ICJ in the past few years (see prior post briefly discussing this history).

The first case heard by the ICJ—Dispute Regarding Navigational and Related Rights—instituted by Costa Rica in 2005 concerned Costa Rica’s right to freely (without obstacles or taxation) navigate the San Juan River. The Court held that, while the River is Nicaraguan territory and Nicaragua can regulate the River traffic for national security, Costa Rica has the right of navigation for the “purposes of commerce” (see pleadings and related material here). In the second ICJ dispute—Certain Activities carried out by Nicaragua in the Border Area—which was instituted in 2010 and is still pending before the ICJ, Costa Rica contested Nicaraguan military presence at Isla Calero, territory that Costa Rica claims as its own, in connection with the construction of a canal (see prior post discussing this case; see pleadings and related material here).

This latest ICJ dispute between the countries concerns a road constructed by Costa Rica parallel to the San Juan River between Los Chiles and the Delta region. According to some accounts, the road was constructed as a defensive measure against the possibility of an incursion by Nicaraguan troops (see story here). While the road runs solely on Costa Rican territory, Nicaragua contends that its construction resulted in harmful environmental effects on Nicaraguan territory—specifically silting of the San Juan River, erosion of the River banks, and harm to the surrounding ecosystem of wetlands and the Indio Maiz Biosphere Reserve.

In its complaint, Nicaragua asserts that the construction of the road, which began in July 2011, has already “resulted in dumping in the River of substantial volumes of sediments—soil, uprooted vegetation and felled trees.” It also argues that “the felling of trees and the removal of topsoil and vegetation close to the River bank facilitate erosion, and the leeching of even greater amounts of sediments into the river.” Ultimately, Nicaragua alleges that Costa Rica breached its international obligations by infringing on Nicaragua’s territorial integrity, damaging Nicaraguan territory, and violating general obligations in international law and relevant environmental conventions. In its request for relief, Nicaragua seeks restoration to the status quo ante, damages, and preparation and transmission of an appropriate transboundary environmental impact assessment (EIA).

In addressing this case, the Court is likely to refer to its 2005 decision in which it found that, while Costa Rica has rights to navigate the San Juan River, the river remains Nicaraguan territory (see 2005 decision here). Accordingly, the case could turn on whether Costa Rica’s construction of the river road caused transboundary environmental harm to Nicaragua, including the San Juan River. Based on prior decisions between the two nations, as well as international law, Costa Rica certainly is bound to respect and not harm the territory and environment of its neighbor (see e.g., 1858 Treaty on the Boundaries between Nicaragua and Costa Rica, the Cleveland Award of 1888 [English and Spanish], and the five Awards of the Umpire EP Alexander of September 30, 1897, December 20, 1897, March 22, 1898, July 26, 1899, and March 10, 1900).

Establishing a legal cause of action for transboundary harm, however, is typically dependent on showing a minimum level of harm. For example, both the UN Watercourses Convention and the UN International Law Commission’s Draft Articles on Transboundary Aquifers require harm to be substantial before it can be actionable. In the context of a transboundary watercourse, the UN International Law Commission asserted that significant harm occurs where the “harm exceed[ed] the parameters of what was usual in the relationship between the States that relied on the use of the waters for their benefit.” It also suggested that significant harm means “something more than ‘measurable’, but less than ‘serious’ or ‘substantial,’” and that an adverse effect or harm that is “not negligible but which yet did not necessarily rise to the level of ‘substantial’ or ‘important’” is considered “significant” (see footnote 123 and related text in my Article discussing the significant harm threshold). Whether Costa Rica’s actions rise to the level of significant harm remains to be seen.

As to the preparation and transmission of an EIA, the need for an EIA will depend on how the Court rules on the issue of significant harm. In the Case Concerning the Pulp Mills on the River Uruguay, the ICJ recognized that the practice of environmental impact assessment “has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource” (see Parag. 204 of the decision in the case). Hence, there first must be a determination that Costa Rica’s road building had the potential to result in a significant transboundary adverse impact before it can be argued that an EIA was required. It is noteworthy that the standard for mandating an EIA is lower than for finding an actionable injury: “may have a significant adverse impact” for the former, and “significant harm” for the latter.

On January 23, 2012, the Court issued time-limits for the two nations to file the initial pleadings in the dispute: December 19, 2012, and December 19, 2013, for Nicaragua and Costa Rica, respectively (see ICJ Press Release). In the interim, a group of environmentalists have challenged the Costa Rican government’s actions before the country’s Supreme Court and are seeking to enjoin the continued construction of the road (see story here).

As is often the case, the ICJ is in a unique position to provide guidance on an important legal matter, as well as a critical “real world” dispute.

Special thanks to law student Elana Katz-Mink, at American University’s Washington College of Law, for her invaluable assistance in developing this post.

What Does Turkey’s Contemplated European Union “Freeze” Have to do with Water?

February 2nd, 2012

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

Turkey plays an increasingly important global role as a cultural and economic bridge between Western nations and Muslim-majority nations. Its role has the potential to grow as it has been in talks to accede to the European Union (“EU”) since 2005. However, Reuters recently reported that Turkish officials have stated that Turkey would “freeze” relations with the EU if the EU were to grant its presidency to Cyprus (see Reuter’s article here). Cyprus is scheduled to take on the six-month rotating EU presidency in July 2012.

Turkey’s opposition to Cyprus’ EU presidency stems from several factors, including the potential conflict over Cyprus’s off-shore oil and gas drilling by Cyprus that is opposed by Turkey. But most fundamentally, Turkey is the only nation that currently recognizes the independent status of Northern Cyprus, with its majority ethnic Turk population, as compared to the rest of the majority ethnic Greek government of Cyprus. Turkey’s 1974 intervention (or invasion, depending on your perspective) in Northern Cyprus, Turkey’s recognition of Northern Cyprus as an independent states, and the EU’s blockade of Northern Cyprus have been the more stubborn obstacles to Turkey’s accession to the EU.

What does all of this have to do with water? The island of Cyprus has been suffering from a prolonged drought, impacting both agricultural and copper production, and further straining relations between North and South (see BBC article here).

Turkey has discussed construction of additional dams and reservoir capacity on the already contentious Euphrates River (which Turkey shares with co-riparians Syria and Iraq, as well as ethnic Kurds in all three countries, with each group suffering from drought as well). The proposed additional storage capacity on the Euphrates would not go to provide water to Turkey or its Euphrates co-riparians, but instead would supply Northern Cyprus via an undersea pipeline (see Global Post article here, and Green Prophet article here).

According to the Famagusta Gazette, Turkey began construction of the new reservoir and the undersea pipeline in March of 2011. The Turkish government contemplates 4 stages of construction for the project, with a projected completion date in March of 2014 (see article here).

Interestingly, this is not Turkey’s first foray into bulk water transports via pipeline into politically-contested territories. Turkey has previously proposed a “peace pipeline” to provide water to states in the Middle East, including Israel (see prior IWLP post on this topic here).This type of bulk water transport has very few precedents in international water policy. Singapore has, since the 1920s, purchased water in bulk from Malaysia (see here). Bulk water transport has been contemplated between the Canada and arid regions of the United States. However, environmental concerns over interbasin transfers and controversy over international trade and investment law, including NAFTA Chapter 11 protection for investors in bulk water transport projects, ended the contemplated transfer.

Turkey’s storage and pipeline project for the benefit of Turkish Cypriots has several implications for international water law and the hydropolitics of the region. First, other than the issue of Northern Cyprus, one of the other main obstacles to Turkey’s accession to the EU has been its relations with Syria and Iraq with respect to the Euphrates, and its treatment of ethnic Kurds within the Euphrates basin (see BBC article here).

Turkey’s relations with its co-riparians would arguably not comply with the EU Water Framework Directive (“WFD”). The WFD requires that EU member states work with co-riparian states in projects on transboundary rivers, and that requirement is not limited to coordination only with organized states, but also arguably with non-state actors, such as the Kurds. Additional storage on the Euphrates and an international bulk exportation of water from the basin will only further exacerbate relations between Turkey, Iraq, and Kurdistan, and aggravate an already imposing obstacle to Turkey’s accession to the EU.

Turkey’s failure to coordinate with its Euphrates co-riparians with regards to this project raises questions of international law and the widely accepted customary international law principle of “good neighborliness” requiring cooperation and information sharing for projects impacting shared fresh water resources. While there is no current treaty framework governing the Euphrates, the Turkish/Syrian Mixed Economic Commission and the Trilateral Water Institute/Joint Technical Committee can provide a foundation upon which to build a collaborative institution facilitating information sharing and cooperation between Euphrates riparians. Participation of Iraqi, Syrian, and Kurdish riparians in any bulk water export would at least avoid the legal and diplomatic problems arising from the contemplated storage and pipeline project for Northern Cyprus.

Furthermore, Turkey’s contemplated pipeline project raises questions of international trade in bulk water, not dissimilar to the issues that confronted the contemplated bulk water transport from Canada to the Southwestern United States. For example, the Greek Cypriot government could throw up legal trade barriers to prevent Turkey from selling water to Northern Cyprus. Such trade barriers could run afoul of the World Trade Organization laws, such as the 1994 General Agreement on Trade and Tariffs, respecting the “equal footing” status of trade partners as compared to domestic vendors. However, the status of bulk water transported via pipeline as a “commodity” subject to WTO regulations is not settled law, and the unique relations of the Greek Cypriot government toward Turkey, as well as the dire drought conditions in Cyprus, make this case more complicated than simply discriminatory tariffs.

Turkey could avoid these issues and facilitate its accession to the EU in several ways. First, Turkey could build upon those existing river basin institutions on the Euphrates by including Iraq and Kurdish representatives in an effort to comply with the WFD in the implementation of the reservoir and pipeline project. Second, Turkey could investigate the potential cost savings and water production capacity of desalination in Northern Cyprus as compared to the reservoir and pipeline project; if cost-feasible, desalination could provide a less controversial alternative to addressing the drought in Northern Cyprus. Third, while Turkey is unlikely to withdraw support in the near future for a Turkish Cypriot state, Turkey could recognize that it would have a great ability to address the interests of Turkish Cypriots as a member of the EU than under the status quo. Turkey’s efforts to alleviate the drought in Cyprus on a nondiscriminatory basis for the benefit of all Cyprus, whether through desalination or the reservoir/pipeline project, could be viewed as an olive branch to Greek Cypriot government. Such a diplomatic gesture could facilitate Turkey joining the EU despite support for an independent Northern Cyprus.

Turkey’s contemplated “freeze” of its relations with the EU fray what had been a strengthening tie between East and West. How Turkey resolves the interrelated water issues toward its Euphrates co-riparians as well as toward Cyprus could go a long way in either restoring or further weakening its role as an important cultural and economic bridge.

UNGA Adopts New Resolution on Transboundary Aquifers

December 17th, 2011

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

Resolution on the Law of Transboundary Aquifers

The General Assembly,

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

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

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

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

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

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

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

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

 

Transboundary Aquifers in the Americas

Transboundary Aquifers in the Americas

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

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

 

Transboundary Aquifers in Africa

Transboundary Aquifers in Africa

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

 

Transboundary Aquifers in Asia

Transboundary Aquifers in Asia

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

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

 

Transboundary Aquifers in Europe

Transboundary Aquifers in Europe

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

UPDATE: Resolution 66/104 is now available here.

Sources for Maps:

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

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

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

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

The Silala Basin: One of the Most Hydropolitically Vulnerable Basins in the World

October 27th, 2011

A few months ago, Brendan Mulligan and I published a paper entitled “The Silala/Siloli Watershed: Dispute over the Most Vulnerable Basin in South America in the peer-reviewed International Journal of Water Resources Development. The dispute, pitting Bolivia and Chile, provides a fascinating case study involving both transboundary surface and ground water resources. Of particular interest, it also involves an artificial watercourse traversing the border that may defy application of international water law to the controversy. In 2007, UNEP named the Silala watershed the only “high risk” basin in South America and “one of the most hydropolitically vulnerable basins in the world.”

The dispute focuses on water flowing across the Bolivian-Chilean border in the Atacama Desert via a canal constructed in the early 1900s by Antofagasta & Bolivia Railway Company, a Chilean mining operation, per a concession granted by the Bolivian Prefecture of Potosí. Bolivia claims ownership over the Silala River on grounds that the river originates from springs on its side of the border and that the Silala’s waters are transported artificially to Chile; in essence, Bolivia denies the existence of a Silalar river. In 1997, the Bolivian government revoked the concession on grounds that the waters had long been used for purposes that were different than those agreed to in the original agreement. It also sought to awarded a new 40-year concession to the Bolivian firm DUCTEC SRL for $46.8 million, established a military base on the banks of the Silala River, publicly discussed a plan to bottle the river’s water and sell it with the slogan “Drink Silala water for sovereignty,” and conducted a feasibility study for a hydroelectric plant on the Silala just inside Bolivian territory (see Bloomberg article). At one point, Bolivian officials asserted that any negotiations with Chile should guarantee Bolivia access to the Pacific Ocean (see Spanish-language article), a demand suggesting that the issues surrounding the Silala are not entirely water-focused.

In contrast, Chile bases its ownership claims on grounds that the Silala’s waters were never diverted from its original channel, but rather that the canal works merely augment the natural flow of the Silala River. Hence, Chile argues that the Silala is and always has been a transboundary river subject to international water law. Moreover, it contends that it need not pay for the use of the Silala and that Bolivia’s rescission of the original concession, as well as Bolivia’s awarding of the more recent DUCTEC concession, were illegal. It is noteworthy that while Chile voted in favor of the 1997 Watercourses Convention, Bolivia abstained from the vote and neither has signed or ratified it. Although the two governments have attempted to resolve the dispute, including drafting a bilateral agreement on the use of the waters of the Silala (Spanish / English), it remains unresolved.

The applicability of international water law to the Silala scenario depends largely on whether or not the Silala River is described as a natural transboundary watercourse. A manufactured river, in the form of canals or other man-made systems, would not fall within the rubric of international water law since, by definition, such water bodies are proprietary and subject to the agreements that created them. Moreover, international water law does not apply to surface runoff flowing in a marginally defined or in undefined channel (e.g., surface runoff) regardless of whether or not the flow crosses an international boundary.

In the case of the Silala Basin, most of the spring flow is captured by artificial channels, constructed by the mining interests under its 1908 concession from the Bolivian Prefecture of Potosí and that cross into Chile via the principal canal. This would suggest that the water in the canal is subject solely to the terms of the concession agreement rather than to international water law. And when Bolivia rescinded the concession, the waters’ ownership reverted back to Bolivia.

Nevertheless, geological and topographical evidence (including onsite evaluations conducted by my co-author, Brendan Mulligan), as well as certain historical material, indicate that prior to canalization, the Silala springs flowed naturally across the Bolivian-Chilean border in approximately the same path as the principal canal. If this proves true, application of international water law is still unclear since we would have a transboundary river that was captured and canalized for private use.

Chile might argue that the concession trumps international water law since international law allows for the creation of agreements deviating from international standards so long as the deviations do not violate jus cogens (peremptory international norms). On the other hand, Bolivia may contend that the concession was a license revocable at the will of the licensor (Bolivia). If this latter analysis holds, then the rules for the basin reverted back to the default norms of international water law when the Bolivian government revoked the concession in 1997.

Still, to the extent that the flow of the pre-canalized Silala was intermittent rather than perennial, applicability of international norms also may be tenuous. The substantive rules of international water law can be understood, in part, as rules of liability. In other words, violation of the rules mandates the imposition of responsibility and recompense. Violation of the rules, however, can only occur where human actions interfere with the natural flow of the watercourse. Where a river fails to flow for natural reasons, as an intermittent stream is wont to do, no liability may be imposed. Moreover, the absence of state practice or examples in which international water law norms were applied to an intermittent stream suggests that this scenario is, at best, unresolved. Hence, to the extent that prior to canalization water in the Silala flowed across the Bolivian-Chilean border only intermittently, international water law principles may not be applicable to the present dispute.

Further complicating the scenario is the presence of an interrelated transboundary aquifer. As noted above, the Silala River is fed by springs in Bolivia. Those springs, however, emerge from the Silala Aquifer, which is believed to traverse the Bolivian-Chilean border. Unfortunately, as little as is known about the topography and geology of the Silala River Basin, even less information is available about the underlying aquifer. In addition, international law applicable to transboundary ground water resources is still in its infancy and there are only a few examples of state practice from which lessons can be drawn (see my article on Managing Buried Treasure Across Frontiers: The International Law of Transboundary Aquifers).

Whether additional facts and scientific information will be forthcoming from the parties or from independent sources is presently unclear. Moreover, even with such information, international water law, whether for transboundary surface or ground water resources, may not have a ready solution. As is often the case in disputes over shared water resources, negotiations may provide the most optimal solution for this most hydropolitically vulnerable of basins.

Lessons Learned: From High Ross to the Columbia

October 17th, 2011

Jeff Dornbos, an associate at Warner Norcross & Judd LLP, provided the following guest post. He recently published an article, “All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes” in the Fordham Environmental Law Review (here). In this guest post, he discusses how some of the lessons presented in that article apply to the Columbia River Treaty renegotiation. Jeff wishes to thank Laura Rogers-Raleigh for her valuable research assistance.

On April 2, 1984, the United States and Canada entered into a treaty that ended the High Ross Dam controversy, a protracted dispute over a proposal to raise the height of a hydroelectric dam located on the Skagit River in Washington State. Analysis of the dispute resolution processes, and the successful outcome of the treaty, suggest that there are several advantages to organizing transboundary-water-dispute negotiations around hydrologic boundaries rather than political boundaries.

The High Ross dam, a hydroelectric dam that generates power for Seattle, is built on the SkagitRiver, which flows from the Canadian provinceof British Columbia, across the border, and into the state of Washington. The controversy arose when Seattle Light Company developed a proposal to raise the dam in order to meet its growing demand for energy. Following through with the proposal would have generated more electricity for the city of Seattle, but it also would have flooded approximately 5,475 acres of pristine wilderness in British Columbia. Ultimately, after lengthy efforts to resolve the issue, the United States agreed not to raise the height of the dam in exchange for a long-term supply of electricity from Canada, at the price it would have cost to raise the dam.

Resolution of the High Ross Dam controversy was hailed as a success on both sides of the border. President Reagan noted that it was “constructively and ingeniously settled.” Canada’s external affairs minister and the U.S. Secretary of State said it could serve as a model for resolving other transboundary disputes. It was the process, however, not the resolution, that was the most interesting aspect of the dispute. Specifically, the successful negotiations took place between representatives of Seattle and British Columbia, not high-level officials from Ottawa and Washington. According to one negotiator involved in the process, both American and Canadian government officials told local officials to figure it out and then report back when they had a solution. In the end, it was the local negotiators who played the key role in resolving the dispute.

At least two studies of the controversy (an oral history project and a research paper that based its findings largely on interviews) suggest three factors contributed to the success of the negotiations: First, even though it was a transboundary dispute, local negotiators, with local knowledge and a stake in the outcome, played a central role in resolving the dispute. These negotiators were able to balance different interests without getting caught up in other, unrelated, disputes between the two countries. Second, the resolution included the participation of a variety of interest groups. Third, the availability of both scientific and experiential knowledge was useful in achieving a mutually acceptable resolution. As the authors of the Oral History Project stated, “experiential knowledge is not clearly distinct from scientific knowledge – the two inform and influence each other to create a more richly textured public wisdom.” Involving local negotiators helped to ensure availability of sound scientific and experiential knowledge regarding the transboundary water body.

These three lessons are consistent with three fundamental aspects of transboundary water resource management: fostering long-term cooperation, ensuring public participation, and gathering accurate data. Each of these is a focus of well-known water and environmental instruments, including the Berlin Rules, the Rio Declaration, and the Watercourses Convention. Long-term cooperation is necessary to avoid the tragedy of the commons (the prisoner’s dilemma provides another useful analogy). Accurate data gathering is essential for evaluating how the actions of those using the water resources will impact it in both the short and long term. And public participation is justified both as an ends in itself and as a mechanism for better decision making.

The three lessons are also consistent with the “watershed approach” to managing water systems whereby management of water resources is based on the boundaries of the watershed rather than political boundaries. The approach is based on the understanding that political boundaries are not always the best demarcation lines for managing water resources because watersheds often cross jurisdictional and political boundaries, including international frontiers The lessons of the High Ross Dam controversy also mirror very well the EPA’s three guiding principles to the watershed approach: getting those most directly affected by decisions involved in the decision making, focusing on the geographic boundaries of the water body, and basing decisions on strong science and data.

The International Joint Commission (IJC) recognizes that the watershed approach provides a useful framework for managing transboundary water resources. In one report, for example, the IJC highlighted resolution of the High Ross Dam controversy as one of its achievements in fostering transboundary environmental management. In that same report, developed in response to a request from the United States and Canada to provide proposals for how to best assist in meeting the “environmental challenges of the 21st century,” the IJC suggested developing international watershed boards to help resolve transboundary water disputes between the United States and Canada.

The High Ross Dam provides useful lessons for future transboundary water agreements, such as the renegotiation of the Columbia River Treaty. The treaty, originally ratified in 1964, resulted from the desire of both the United States and Canada to cooperatively manage the Columbia River in order to control flooding and provide electricity. Pursuant to the treaty, the two countries constructed dams to generate electricity and regulate flooding, which have provided significant benefits to citizens of both nations.

Notwithstanding these benefits, some residents of the basin criticize the treaty, and construction of the dams, for leading to the flooding of fertile farmland, displacement of 2,300 residents, loss of tribal cultural sites, and destruction of wildlife habitats. Specifically, many residents of the basin argue that they were not given sufficient input in the original treaty negotiations. On the Canadian side, for example, dissatisfied residents have established the Columbia Basin Trust. The group’s stated function is to provide “advice on meaningful consultation processes with Basin Residents and local governments on any process to amend, renew or terminate” the Treaty. South of the border, the United States established a Sovereign Review Team that includes representatives from states, tribes, and relevant organizations, tasked with delivering recommendations for the future of the Treaty.

Although local groups are being given the opportunity to provide input on the renegotiation process, the Columbia River Treaty presents at least two opportunities for further involvement from local stakeholders. First, beyond simply getting input from local stakeholders, local negotiators could be empowered to participate in the negotiation process. Second, the treaty could be renegotiated to include the establishment of a watershed board, comprised of local experts and stakeholders from the basin, empowered to negotiate resolutions to disputes. Article XVI of the treaty, for example, could be amended to give this watershed board the ability to assist in settling differences. The board would be established around the geographic boundaries of the basin, tasked with studying the basin, and empowered to help settle differences that arise over time.

Transboundary water resources, by definition, do not fall neatly into political or jurisdictional boundaries. International transboundary water resources are not rare, as demonstrated by a United Nations-supported report, estimating that nearly half of the world’s population lives “in river and lake basins that comprise two or more countries.” Developing sophisticated international watershed boards is unlikely to be feasible in many of these transboundary basins. But the lessons from the successful resolution of the High Ross Dam controversy suggest that there are advantages to structuring negotiations over transboundary water disputes around hydrologic boundaries, not just political boundaries. While international disputes may often require some involvement of “high-level” officials, these officials should look to the boundaries of the watershed at issue and involve local stakeholders who are as closely aligned as possible to that watershed. Transboundary water agreements, for example, could include a rebuttable presumption that negotiations over transboundary water disputes begin with identifiable groups organized at the most decentralized hydrological level. Ultimately, including this rebuttable presumption would help to meet the goals of fostering long-term cooperation, promoting public participation, and gathering accurate data, such as were keys to resolving the High Ross Dam controversy.

Ground water, ground water, everywhere …

September 16th, 2011

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

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

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

Libya and Water as a Weapon

September 15th, 2011

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

 

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

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

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

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

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

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

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

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