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. You can reach Dr. Salman at SalmanMASalman [at] gmail.com.
In a stunning development, the Republic of South Sudan announced on Monday 8 July 2024 that its Transitional National Legislative Assembly (TNLA) unanimously voted to accede to the Nile Basin Cooperative Framework Agreement (CFA) [see here].
The CFA (also known as the Entebbe Agreement) has an intricate history which dates back to 1999, following the establishment by the Nile Basin riparian countries of the Nile Basin Initiative (NBI). The main objective of the NBI has been to conclude a cooperative framework agreement that would incorporate the principles, structures and institutions of the NBI, and that would be inclusive of all the Nile riparians. Work on the CFA, facilitated by the World Bank, the UNDP and other donors, started immediately after the NBI was formally established, and continued for more than ten years.
However, the process ran into some major difficulties as a result of the resurfacing and hardening of the respective positions of the riparians over the Nile colonial treaties, as well as the Egyptian and Sudanese claims to what they see as their acquired uses and rights of the Nile waters. Egypt and Sudan demanded an explicit reference to those uses and rights (termed as their “water security”) in the CFA; a demand that was vehemently rejected by the other riparians who broached the banner of “equitable and reasonable utilization.” Those differences persisted and could not be resolved at the negotiations or ministerial levels, and no agreement on the final draft CFA could be reached.
Nonetheless, on 14 May 2010, in an historic development, four of the Nile riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA in Entebbe, Uganda, and were subsequently joined by Kenya and Burundi, raising the number of the signatories to six.
The CFA lays down some basic principles for the protection, sharing and management of the Nile Basin. It establishes the principle that each Nile Basin state has the right to use, within its territory, the waters of the Nile River Basin, and lays down a number of factors for determining equitable and reasonable utilization. The CFA is modelled largely on the UN Convention on the Law of the Non-navigational Uses of International Watercourses.
In addition to the factors enumerated in the Watercourses Convention, the CFA includes the contribution of each basin state to the waters of the Nile River System, and the extent and proportion of the drainage area in the territory of each basin state [see here]. The CFA will enter into force 60 days after six countries have ratified or acceded to the document and deposited their instrument with the African Union; i.e. on 6 October 2024.
The process of ratification of the CFA started in June 2013, four years after its signature, by Ethiopia, followed in August of that year by Rwanda. Tanzania ratified the CFA in 2015, followed by Uganda in 2019, [see here]. Burundi joined those four riparians and ratified the CFA in 2023, raising the number of ratifications critically to five [see here].
Subsequently, all eyes were cast on the ratification by Kenya, the sixth country to sign the CFA, which would enable the CFA to enter into force. However, that did not take place. Instead, South Sudan did it, putting Kenya in the awkward position of being the only signatory not to ratify the CFA.
The Republic of South Sudan emerged as an independent state on 9 July 2011, and was admitted to the NBI on 5 July 2012 [see here]. That decision clearly favored the Nile upper riparians, based on ethnicity, geography, history, culture and interests. When it joined the NBI, South Sudan could not sign the CFA because the signing process closed in 2000, long before its birth. But, it could accede to the instrument.
The pressures from each of the two sides to the CFA on South Sudan kept South Sudan wavering on accession and none-accession to the CFA for a long time. In fact, the proposed bill for the accession of South Sudan had been on the agenda of the TNLA since mid-2023, until its unanimous sudden approval was announced on 8 July 2024.
The entry into force of the CFA will create new momentous realities which Egypt and Sudan cannot, and indeed should not, overlook or underestimate. It will enable the establishment of the Nile Basin Commission replacing the NBI with wider and more elaborate mandate, power, visibility and recognition by the world water and development aid communities. Entry into force of the CFA will also end the long academic and futile debate on the Nile colonial treaties. Thus, it is for Egypt and Sudan own interests to join the CFA, and to work in the spirit of cooperation with the other Nile riparians to manage, share, develop and protect the Nile River Basin. Afterall, and as mentioned above, the CFA is modelled on the UN Watercourses Convention that was endorsed by more than one hundred countries in 1997, and has been in force since 2014.
The following essay, authored by Francesco Sindico, Laura Movilla Pateiro, and Gabriel Eckstein, was first published on EJIL: Talk!, the Blog of the European Journal of International Law. It is reposted here with their kind permission.
Background
The Silala waters originate in Bolivia near its border with Chile, at an altitude of 4000 metres. This is one of the driest parts of the planet and home to unique mountain wetlands known as bofedales. In 1928, the Silala was heavily canalized on the Bolivian side of the border. According to Chile, this was done to address water quality concerns. Bolivia argued that the purpose was to enhance the quantity of Silala water flowing downstream.
A Silala canal in Bolivia
Chile and Bolivia, for the past six years, have engaged in a dispute before the International Court of Justice over the waters of the Silala. On 01 December 2022 the Court released its decision. This summary highlights some key facts and the outcome of the case, and raises a number of preliminary questions that the case presents about general international law and the law of international watercourses.
At the heart of the dispute is the “nature” and the “use” of the Silala. In a nutshell, Chile wanted the Court to “declare” the Silala an international watercourse entirely governed by customary international law, that its “use” was lawful according to international law, and that Bolivia’s recent proposals and efforts to use the Silala were unlawful. Bolivia presented counterclaims asking the Court to declare that it had sovereignty over both the infrastructure located in its territory and the enhanced portion of the surface flows, which benefitted Chile. Bolivia also sought a ruling that any future deliveries of enhanced flows to Chile had to be subject to an agreement.
Outcome
Chile had always considered the Silala as an international watercourse. Bolivia started the proceedings considering the Silala to be domestic springs from which water was diverted downstream into Chile by means of the artificial infrastructure. Scientific studies commissioned by Bolivia during the judicial process revealed that the waters of the Silala would have flowed on the surface into Chile even without canalization. Thus, the positions of the two sides eventually converged. The only disagreement was on the effect of the infrastructure on the Silala’s surface flows with Chile maintaining that it was minimal (1 to 3%) and Bolivia considering that it was more significant (11 to 33%). Hence, Bolivia maintained that the Silala was an international watercourse with unique characteristics due to the extensive canalization infrastructure that enhanced the Silala’s surface flows. Bolivia, however, agreed in the oral proceedings that the Silala was subject to customary international law.
Map of the Silala Region
In deciding Chile’s first claim, the Court acknowledged that the parties had reached an agreement over the nature of the Silala as an international watercourse and that both agreed that customary international law applied to all of its waters. As a result, the Court concluded that the claim no longer had any object and that it did not have to issue a decision (§59).
The Court reached the same conclusion on Chile’s second (§65), third (§76) and fourth (§ 86) claims. In the second claim, it emphasized that both Parties agreed that the principle of equitable and reasonable utilisation applied to all the waters of the Silala, and that both parties were entitled to such utilisation. In the third claim, the Court highlighted statements made by both sides that Chile was entitled to its current use of Silala water as a function of its right to equitable and reasonable utilisation, and that such use was without prejudice to any future equitable and reasonable use that Bolivia might make, including related to the dismantling of the canals and restoration of the wetlands. With regard to Chile’s fourth claim—related to the threshold of harm that States must avoid when using the waters of an international watercourse in a way that causes pollution—the Court concluded that because Chile clarified its position during the proceedings that the actionable level was “significant” harm, as Bolivia had consistently argued, there was no disagreement between the Parties. In each of these claims, the Court acknowledged the agreement, ruled that it was devoid of any object, and declined to issue a decision.
Where the Court identified a disagreement in law and facts was in relation to Chile’s last claim. Here, Chile asserted that Bolivia had breached several procedural provisions of international law, namely the obligation to notify and consult with respect to measures that may have an adverse effect on other watercourse States. Since neither State is a party to the 1997 United Nations Watercourses Convention (UNWC) (§54), the Court decided the case on the basis of customary international law. However, Chile argued that Articles 11 and 12 of the UNWC reflected customary international law related to notification and consultation obligations. The Court rejected Chile’s assertion related to Article 11, clarifying for the first time in its case law that there was no state practice to justify such a conclusion (§111). It also acknowledged that while the Parties and the Court agreed that Article 12 reflected customary international law Chile and Bolivia had divergent views on the threshold that triggers a violation. According to Chile, “significant adverse effect” was the relevant threshold when considering application of the obligation to notify and consult on planned measures, as well as when the results of an environmental impact assessment must be shared. In contrast, Bolivia argued that the obligations only arise where there was a risk of significant transboundary harm. Relying on its jurisprudence in the cases of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), the Court sided with Bolivia. While it acknowledged that the Commentaries to the Draft Articles on the Law of Non Navigational Uses of International Watercourses prepared by the UN International Law Commission did refer to the lower threshold, it concluded that Article 12 of the UNWC “does not reflect a rule of customary international law relating to international watercourses that is more rigorous than the general obligation to notify and consult contained in its own jurisprudence” (§117). The Court then reviewed the facts in the case and concluded that Chile had failed to allege or demonstrate any harm resulting from Bolivia’s planned measures on the Silala (§127). As a result, it unanimously rejected Chile’s claim (§128).
Bolivia’s three counterclaims received a similar fate as had Chile’s claims. The Court ruled that the Parties had reached an agreement during the proceeding on the first two, rendering them without object and negating the need for a decision; it also rejected Bolivia’s third claim.
Bolivia’s first counterclaim requested a declaration recognizing its sovereignty over the infrastructure and Bolivia’s right to remove it. In its second counterclaim, a corollary of the first, Bolivia requested a declaration of its sovereignty over the enhanced flow generated by the infrastructure. Since Chile had fully accepted Bolivia’s first counterclaim in its pleadings and during oral argument, the Court concluded that it was without object and required no decision (§147). Similarly, the Court considered that the Parties had reached a consensus on the second counterclaim as it related to Bolivia’s right to dismantle the canals and diminish the flow of the surface water downstream into Chile (§155). Thus, it also declined to rule on this point. As to Bolivia’s final counterclaim—asking the Court to declare that any need by Chile to have Bolivia maintain the infrastructure and enhanced flows would be subject to an agreement— the Court rejected it on grounds that it presented a hypothetical future scenario (§162).
Questions
The Silala case raises unique questions both for general international law and international water law. For the former, a key question relates to the consequence of new evidence and the Parties’ evolving positions during the proceedings that bring them closer to an agreement on the substance of a claim. In such cases, should the Court issue a declaratory judgement or, as occurred in the Silala case, is it free to declare a claim void of object that requires no decision? In this regard, see the Declaration of Judge Charlesworth and the Separate opinion of Judge ad hoc Simma. Another question pertains to the use of experts by the Parties, the Court’s request for cross-examination of the experts during the hearing, and the lack of nearly any reference to the science or experts in the decision.
From an international water law perspective, the Silala case appears to provide some clarification on the procedural obligation to notify and consult under customary international law. Question will surely be asked as to whether it has done so in a progressive or regressive manner. However, less clarity emerges from the decision on the extent to which riparians must cooperate to fulfil their obligations to notify and consult, on the nature of an international watercourse, and on the need to take into account the “uniqueness” of such a watercourse in the context of applying the principle of equitable and reasonable use.
While the Silala decision is distinct in being one of the few ICJ pronouncements on a dispute involving an international watercourse, it is still too early to comprehend is full value. In addition to the above, other questions will likely arise from the case for both general international law and international water law. For now, we hope these are enough to begin the discussion.
Francesco Sindico, Laura Movilla and Gabriel Eckstein all served as Counsel for the Plurinational State of Bolivia in the ICJ Silala case. None of what is written here should be attributed in any way to the Plurinational State of Bolivia, and only represents the positions and opinions of the three authors in their personal capacities.
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The Rio Grande River, known in Mexico as the Río Bravo, is one of the principal rivers in the southwestern United States and northern Mexico. Originating in Colorado in the U.S., the Rio Grande flows over 3,000 kilometers to the Gulf of Mexico. Its basin covers an area over 500,000 square kilometers. Governing such an important transboundary water system poses a multitude of issues, and the most recent treaty guiding such efforts is now almost 80 years old. Regina Buono and Gabriel Eckstein discuss here the big challenges facing the Rio Grande/Río Bravo Basin, and how effective the current governance arrangements are.
The Rio Grande flowing through a national park in Texas, U.S. The Rio Grande/Río Bravo Basin ties two nations together through shared natural resources, wildlife habitats, socio-economic systems, culture and history. Governing this transboundary system is an enormous challenge. (Image by David Mark from Pixabay)
Mexico and the United States have shared the Rio Grande river basin (known as the Río Bravo in Mexico) for over 170 years. Though the basin includes over 2,000 kilometers of international border, it also ties the two nations together through shared natural resources and wildlife habitats, socio-economic systems, and cultural and historic bonds.
Management of the Rio Grande and its tributaries is governed by a series of border treaties and institutions, as well as the domestic national and state laws of the two countries. The most recent and visible border treaty is the 1944 Treaty on the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, an agreement often lauded for enabling innovative and collaborative governance of the three named rivers.
In recent years the treaty regime has come under intense pressure. Domestic and international water governance institutions are struggling under the strain of climate change impacts, population growth, and the attendant impacts to water supply and demand in the region. Three issues are of particular concern: (1) an increasing focus on groundwater and groundwater-surface water interactions and the related practical and policy implications; (2) strained relations between the two treaty parties, as well as with local and regional stakeholders; and (3) resolution of Mexico’s water debt under Article 4 of the 1944 Treaty and the need to facilitate increased reliability and predictability in Rio Grande water deliveries.
Groundwater, a crucial resource long neglected and little understood
Groundwater has long been neglected by the Mexico-US transboundary water regime. Groundwater plays a significant role in agricultural production, economic development, and even the social fabric of the region, but the estimated 72 transboundary aquifers and hydrological units have only sporadically been studied and are excluded from the existing treaty regime. Groundwater supplies, which constitute essential water sources for millions of people on both sides of the border, are managed under independent, domestic legal regimes in each country. Moreover, there are no procedures or mechanisms to integrate hydrologically related groundwater into the overall management and allocation regime of the Rio Grande.
To address this disorder, a key first step is to collect existing information on groundwater-surface water relationships in the basin, and to fill the significant knowledge gaps with additional research. It’s also important to expand the existing system for data and information sharing to include groundwater resources and facilitate more opportunities for public participation by local stakeholders in the governance system, since groundwater—more so than rivers and lakes—is regarded as a local resource. Finally, the management and governance of transboundary aquifers should be pursued collaboratively by local and regional stakeholders on both sides in a manner that allows full engagement and collaborative decision-making.
Governance across borders
The binational institution responsible for managing Mexico-US border waters is the International Boundary and Water Commission (IBWC/CILA). Its current approach to managing the Rio Grande, which offers limited stakeholder involvement, has been heavily criticized, especially as more integrated and inclusive management approaches have proliferated elsewhere around the world.
Stakeholder participation and transparency are relatively more advanced in the U.S., in part, a function of that country’s decentralized approach to water management, which requires local participation to operate effectively. Stakeholder engagement in the U.S. also benefits from the greater availability of resources for state-level administrations and agencies that support the development and administration of local and regional water plans, as well as from efforts by private and civil society groups.
In contrast, stakeholder participation and transparency on the Mexican side is largely absent because of the country’s centralized approach to water management. Since the vast majority of domestic water-management decisions are made by the country’s federal water agency, CONAGUA, at the national level, local communities have little to no real opportunity to be involved in meaningful decision-making. The eventual effects of these enduring conditions became apparent in the summer and fall of 2020 when Mexican farmers in the state of Chihuahua protested water deliveries from the Rio Conchos, Mexico’s chief tributary to the Rio Grande. The protests were a poignant symptom of the disenfranchisement of local water stakeholders in that country.
Mexico’s water debt under the 1944 Treaty
Under the 1944 treaty, Mexico is obliged to deliver to the U.S. an average annual 350,000 acre-feet of water down the Rio Conchos and into the Rio Grande. The treaty allows Mexico to carry over any incomplete balances of water from one 5-year cycle to the subsequent 5-year cycle in the event of an “extraordinary drought.” The two countries, however, have historically disagreed over the meaning of “extraordinary drought” and whether repayment of a water debt can be carried forward over more than two consecutive 5-year cycles (Carter et al. 2017). By the Fall of 2021, Mexico had accumulated a significant water debt and was poised to begin a third 5-year cycle in arrears.
On October 21, 2021, three days before Mexico would have violated its delivery obligations, IBWC/CILA signed an agreement to resolve the issue. Under Minute 325, Mexico fulfilled its delivery obligations by transferring the entirety of its water in the Amistad and Falcon reservoirs to the U.S. While the transfer nearly depleted all of Northern Mexico’s stored water in the reservoirs, in doing so, Mexico abided by the 1944 Treaty and ended the 2016-2020 cycle debt free (Helfgott 2021). The minute also resolved the long-standing disagreement over Mexico’s ability to end two back-to-back cycles, stating that two successive cycles “may not end in a deficiency.”
Minute 325 also recognized the importance of two pre-existing working groups, the Rio Grande Hydrology Work Group tasked with developing technical information on the Rio Grande, and the Rio Grande Policy Work Group, which oversees the Hydrology Work Group and “consider[s] water management policies in the basin.” The two groups are now tasked with developing a new minute by December 2023 to provide “increased reliability and predictability in Rio Grande water deliveries to water users in the United States and Mexico” (IBWC 2020, ¶4).
Equitable, efficient and peaceful water governance
Though challenges remain, the 1944 Treaty’s mechanisms—and, in particular, the treaty’s minute system—have been shown to facilitate and support innovations in water management, and new efforts to improve sustainable management and public engagement in the Rio Grande basin are underway at various levels. As severe drought sets in across Europe, the American west, China, and other parts of the world—underscoring the need to allocate and manage water use equitably, efficiently, and peacefully—it is increasingly imperative that humans imbue water management systems around the world with these qualities.
This essay is a condensed version from the authors’ chapter on “Current challenges in the Rio Grande/Río Bravo Basin: old disputes in a new century,” which appears in Water Resources Allocation and Agriculture: Transitioning from Open to Regulated Access, (Josselin Rouillard, at.al., Eds., Edward Elgar 2022), available at https://doi.org/10.2166/9781789062786.
References
Carter Nicole, SP Mulligan & C Ribando Seelke (2017). U.S.-Mexico Water Sharing: Background and Recent Developments, Congressional Research Services, R43312. https://fas.org/sgp/crs/row/R43312.pdf.
International Boundary and Water Commission (2020). Minute 325: Measures to End the Current Rio Grande Water Delivery Cycle Without a Shortfall, to Provide Humanitarian Support for the municipal Water Supply for Mexican Communities, and to Establish Mechanisms for Future Cooperation to Improve the Predictability and Reliability of Rio Grande Water Deliveries to Users in the United States and Mexico. Available at: https://www.ibwc.gov/Files/Minutes/Min325.pdf
On 22nd November 2021, in the case of Mississippi v. Tennessee, the Supreme Court of the United States issued its first ever decision in a dispute between two U.S. states over a transboundary aquifer. The Justices’ decision was unanimous with the Court dismissing Mississippi’s case and holding that “the waters contained in the Middle Claiborne Aquifer are subject to equitable apportionment,” and that U.S. states may not “exercise exclusive ownership or control” over interstate waters flowing within their borders. While the case involved an entirely domestic U.S. dispute, it is nonetheless an interstate dispute over cross-border groundwater resources. Thus, it could have a significant jurisprudential impact on the development of international law for transboundary groundwater resources.
Background
The Middle Claiborne Aquifer. From U.S. Geological Service.
The Middle Claiborne Aquifer (also known as the Memphis Sand Aquifer) is a relatively large groundwater-bearing formation that underlies eight states in the United States, including Mississippi and Tennessee. Decades ago, Tennessee installed groundwater wells on its side of the border to supply the growing city of Memphis. More recently, Tennessee installed additional wells close to its border with Mississippi to supply Memphis and the surrounding communities. Memphis, with a population of 1.15M people, is one of the largest cities in the United States that relies exclusively on groundwater for its municipal water supply utilizing around 160 wells. In contrast, Mississippi has withdrawn comparatively very little groundwater from the aquifer on its side of the border. Most of the extractions in Mississippi supply individual households and some agricultural activities.
In 2014, Mississippi sued Tennessee and the City of Memphis claiming that since 1985, Memphis had stolen 252 billion gallons (954 million m3) of Mississippi’s groundwater. While Tennessee’s wells were drilled vertically and did not extend across the border, Mississippi asserted that the cones of depression of Tennessee’s wells crossed into Mississippi and diverted that state’s groundwater into Tennessee. Mississippi also claimed that it had an ownership interest in that stolen groundwater and demanded compensation in the amount of USD $615 million. In response, Tennessee asserted that transboundary groundwater resources in the United States should be subject to the same doctrine as transboundary surface waters, namely, the doctrine of equitable apportionment. Hence, it asked the Court to dismiss Mississippi’s case since Mississippi had not filed a claim based on that doctrine. Mississippi responded that equitable apportionment should not apply in its case because groundwater and surface waters have different properties and characteristics, and because Tennessee had already withdrawn 252B gallons of groundwater before there was a chance to divide it in a fair manner.
The Decision
In surprisingly quick action, less than two months following oral arguments, the Supreme Court issued its decision. The Court outrightly rejected all of Mississippi’s exclusive ownership claims and ruled that “the waters contained in the Middle Claiborne Aquifer are subject to equitable apportionment.”
NW-SE hydrostratigraphic cross section beneath the city of Memphis and the adjacent states of Arkansas (AR) and Mississippi (MS). From Michael Campana, Mississippi v. Memphis: The Curious Case of the Memphis Sand Aquifer, in Transboundary Groundwater Resources: Sustainable Management and Conflict Resolution (Fried and Ganoulis, Eds. 2016, Lambert Academic Publishing).
In adjudicating the case, the Court acknowledged that the Court has “never considered whether equitable apportionment applies to interstate aquifers.” However, it quickly asserted that, for three reasons, equitable apportionment of the Middle Claiborne Aquifer would be “‘sufficiently similar’ to past applications of the doctrine to warrant the same treatment.” First, it stated that while the Court had only applied equitable apportionment to transboundary resources, the “Middle Claiborne Aquifer’s ‘multistate character’ seems beyond dispute.” Second, it explained that the aquifer “contains water that flows naturally between the States” and that its distinct characteristics, including the considerably slower movement of groundwater in comparison to surface flows, are irrelevant to the analysis. Lastly, the Court said that where one state’s use of a transboundary resource affects the other state (here, Tennessee’s pumping of the groundwater affected the aquifer in Mississippi through the cone of depression, which extended underneath Mississippi), indeed, “[s]uch interstate effects are a hallmark of our equitable apportionment cases.” Accordingly, the Court concluded that “the judicial remedy of equitable apportionment” applies to the waters of the Middle Claiborne Aquifer.
In addition, the Court thoroughly rejected Mississippi’s claim to sovereign ownership of the groundwater in the portion of the formation that was located within its borders. The Court recognized that each state “has full jurisdiction over the lands within its borders, including the beds of streams and other waters.” However, it asserted that “such jurisdiction does not confer unfettered ‘ownership or control’ of flowing interstate waters themselves.”
Implications for International Law
While nation’s domestic court decisions are not regarded as primary sources for international law, decisions from federal jurisdictions often have been influential in its development. This is especially true in the advancement and evolution of international water law where the jurisprudence of the U.S. Supreme Court in interstate water disputes has featured quite prominently. Thus, it is likely that the recent decision could prove significant in two regards.
Equitable and reasonable utilization
Equitable and reasonable utilization is considered as one of the keystone principle of international water law. However, as Professor Rhett Larson explains, its origin can be traced back largely to U.S. Supreme Court jurisprudence and that Court’s doctrine of equitable apportionment. For example, both equitable apportionment and equitable and reasonable utilization focus on the notion of equality of states under law, and both advocate equity in the allocation of benefits derived from transboundary waters. Moreover, the factors established by the U.S. Supreme Court for determining equitable apportionment are very similar to those laid out in Article 6 of the Watercourses Convention for determining equitable utilization. For example, while the U.S. doctrine considers “physical and climatic conditions” when evaluating the equities, international law ponders the “[g]eographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character.” Although there are also important differences between the two doctrines, it suffices to say that U.S. Supreme Court decisions in interstate U.S. water disputes have greatly influenced the development of the international law principle of equitable and reasonable utilization.
Understandably, three instruments employed for three different transboundary aquifers does not establish the existence of a customary international norm. However, now that the U.S. high court has ruled that waters flowing through the aquifer underlying the Mississippi-Tennessee border are subject to equitable apportionment, other nations may be more inclined to explore the relevance of the comparable international law version of the doctrine—equitable and reasonable utilization—to groundwater resources shared with their neighbors.
Sovereignty
In the U.S. Supreme Court case, Mississippi argued that it had an absolute “ownership” right to all groundwater beneath its surface. As a result, it sought USD $615 million in compensation from Tennessee for groundwater that the latter state caused to flow from underneath Mississippi and to Tennessee’s pumps. In rejecting this claim, the U.S. Supreme Court recognized that while each U.S. state has “full jurisdiction” over “the lands within its borders, including the beds of streams and other waters,” it may not “exercise exclusive ownership or control” of interstate waters flowing within its territory. Otherwise, the Court asserted, it would allow an upstream (or up-aquifer) State “to completely cut off flow to a downstream one, a result contrary to our equitable apportionment jurisprudence.” Thus, U.S. states may not claim sovereign ownership of the groundwater flowing beneath their territories.
Model of a transboundary aquifer. From S. Puri, G. Arnold Challenges to management of transboundary aquifers: The ISARM Programme: 2nd International Conference, Sustainable Management of transboundary waters in Europe, Miedzyzdroje, April 2002 (2002)
The Court’s decision is also noteworthy for the language it used. In recognizing a state’s limited rights to the portion of cross-border land and resources located within its borders, and specifically to “the beds of streams and other waters,” the Court acknowledged only the right to “full jurisdiction,” but not to sovereignty. This could be a critical distinction as “full jurisdiction” suggests a right to control or administer, but does not accord the full right of ownership that would ensue from sovereignty. Moreover, by emphasizing “the beds of streams and other waters,” the Court seemed to focus on the container holding the water. Thus, the Court’s decision could be interpreted as a right to control, regulate, and manage a portion of a transboundary aquifer—the matrix containing the groundwater—found within a country’s boundaries, but not an outright entitlement to claim ownership of that formation segment. While the distinction may seem semantical, full jurisdiction could prove to be a more constrained right as compared to sovereignty in relation to other established interstate obligations, such as cooperation, the peaceful resolution of disputes, and equitable apportionment when arguing before the U.S. Supreme Court.
In the context of international law for transboundary groundwater resources, the notion of sovereignty has been controversial. While sovereignty was excluded from the UN Watercourses Convention, it did find its way into Article 3 of the Draft Articles on the Law of Transboundary Aquifers (despite fervent objections—see here) where each aquifer state is accorded “sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory.” This formulation was justified by some on grounds that groundwater was akin to other natural resources (like oil, gas, and other minerals) that were subject to ownership claims articulated in the UNGA Resolution 1803 (XVII) of 14 December 1962 on Permanent Sovereignty Over Natural Resources; others argued that sovereignty necessarily applies to the stationary, groundwater-bearing, rock formation located within each country, albeit maybe not the groundwater itself. To many water law experts, the provision was anathema to more recent understanding of international water law, especially in light of emerging principles of international environmental law. Professor Stephen McCaffrey, one of the ILC Special Rapporteurs for what became the UN Watercourses Convention, asserted that “In this one provision, the ILC has managed to reverse over 100 years of development of international-watercourse law,” and suggested that the provision harkened back to the now discredited Harmon Doctrine.
The U.S. Supreme Court’s pronouncement in Mississippi v. Tennessee marks a significant departure from the formulation found in the Draft Articles. By asserting that a state may not seek to control exclusively interstate waters flowing within its territory, including groundwater, the Court mandated that interstate waters were common to all riparians and could be utilized and managed only with due regard given to the rights of other riparian states. Potentially more significant, by focusing on the matrix containing the groundwater and using the “full jurisdiction” language, the Court may have signaled its disfavor of unrestrained sovereignty over groundwater-bearing formations that cross political boundaries, and its preference for cooperation and a collaborative approach to the management of transboundary aquifers. In the international water law context, this equates with the notion of limited territorial sovereignty that now prevails for international watercourses, and possibly even the more progressive community of interest theory (see here). Thus, the Court’s decision squarely sides with those who fought against inclusion of the sovereignty provision in the Draft Articles (see here).
Conclusion
Until now, there has never been a national judicial body (in the United States or elsewhere) that has considered a case between two political jurisdictions fighting over the right to use the waters of a transboundary aquifer. As a result, the allocation of, rights to, and sovereignty in transboundary groundwaters and aquifers have been uncertain under both U.S. domestic law and international law. While the case takes a great leap forward in clarifying the law within the United States, it may also prove to be influential in the international arena and serve as basis for the ongoing development of international law for transboundary groundwater resources.
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.
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.
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.
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.
How many times does an academic write a book and then only other academics read it? How useful are such books? This is something that has troubled me throughout my entire career in academia and has haunted me in the preparation of my first book as sole author. How do I write something that will be of interest to people within my area of expertise – international law – but also to those working in different fields relevant for the topic of my book – hydrogeologists, engineers, etc…? Even more importantly, how do I write a book that goes beyond the walls of academia and entice a non-academic readership – policymakers and water professionals?
Dr. Francesco Sindico
The book “International Law and Transboundary Aquifers” takes on this multiple challenge by framing the narrative around a practical scenario. One where two countries acknowledge the existence of a transboundary aquifer that straddles both their borders, and where both nations decide that they wish to manage it together and explore whether there are any rules that they can rely upon to base their cooperation on. It is a book that builds on a twofold premise that is not always present in real life. First, there is a common scientific understanding that the two countries indeed share an aquifer. Second, there is political will on both sides of the border to develop a joint normative framework to govern the aquifer. Chapter 1 provides the reader with an introduction to the book and details the contours of the practical scenario that will be present throughout. You can access the introduction free of charge via the publisher’s website.
Once the scenario is laid out, the book takes the reader through a journey that seeks to answer two key questions. The first one is what are the rules, if any, that two countries willing to manage a transboundary aquifer can consider? The answer to this first question is spelled out throughout chapters 3 and 4, which highlight the emergence of an international law of transboundary aquifers and discuss its normative content. The reader will discover how such rules do exist and can be found in a plethora of existing international legal instruments. These include both substantive and procedural obligations and, while most can be found in the United Nations International Law Commission Draft Articles on the Law of Transboundary Aquifers, the legal mosaic is much more complex and includes the United Nations Watercourses Convention, the UN Economic Commission for Europe Water Convention and its Model Provisions on Transboundary Groundwaters. The second question present in the book is one that the two countries in the practical scenario are deemed to ask themselves once they figure out what rules are present. Are such rules just guidance, or do they “have” to follow them? In other words, is the content of the international law of transboundary aquifers, as spelled out in chapters 3 and 4, legally binding? Is it mere guidance that countries can follow if they so wish and can adapt to their own context and interests? Or does it amount to legally binding obligations that countries are obliged to comply leading to legal consequences in case of breach? Chapter 5 and 6 present an answer to this question by engaging in a discussion about the future of the international law of transboundary aquifers (chapter 5) and introducing the reader to the still relatively small number of transboundary aquifer specific agreements and arrangements (chapter 6). Chapter 5 is where the book embarks in its most difficult challenge: to explain and clarify to a wide range of readers (not just those versed in international law) in practical terms the relevance of defining an international legal obligation as customary international law. Since the latter requires a detailed analysis of state practice, chapter 6 takes the reader through a journey around the world to “see” the various transboundary aquifer agreements and arrangements to consider how they contribute to the crystallisation (or not) of customary international law in the field of international law of transboundary aquifers.
The book does not provide all the answers to policymakers interested in pursuing transboundary aquifer cooperation with their neighbours. However, it does provide a basis upon which discussions can begin and cooperation can be developed. It is my hope that this book can serve such a purpose. For this to happen it is important that the two premises underpinning the practical scenario presented in the book are met: knowledge about the aquifer in the first place, and political will to cooperate. Other books and other means will be useful to overcome these two complex hurdles. However, once they are overcome, then I hope policymakers and transboundary water managers will be interested in picking up my book as a means to clarify, to them and to their counterparts, the normative landscape that lies ahead. If even just one country that shares one of the 592 transboundary aquifers (and groundwater bodies) present in the world achieves some more clarity about the complex landscape ahead, I will feel that my book will have been a worthwhile effort beyond the sometimes too high walls of academia.
The fate of the Mesopotamian Marshes of Iraq provides us with a case study on the functional deficits of the existing body of international water law in managing conflict over transboundary watercourses. This monograph argues that international collaboration over transboundary watercourses is imperative for maintaining peace and stability and should force us into thinking of new ways to address these newly emerging and growing challenges in the field.
Water is a transient and finite resource. Moving through the hydrologic cycle, each molecule may find its way from a transboundary watercourse on one continent to a municipal water supply on another, and then back again. It is often said that every drop we drink has already been consumed by one life form or another.
One of the more perilous side effects of climate change is its threat to the water supply of hundreds of millions of people. In many regions the seasonal absence of rain has historically been compensated for by meltwater from glaciers and winter snowpack across international borders in distant mountain ranges. When these glaciers disappear, so will the water supply during the dry season.
As these pressures increase, the need for effective legal regimes to address the sharing of transboundary watercourses likewise increases. In some cases, the existing law governing the utilization of this ephemeral resource has proven inadequate to prevent conflict and ensure access to water and its benefits for people and ecosystems no matter where they lie along the length of the watercourse.
The history and ecology of the Tigris-Euphrates Basin, and the issues surrounding Turkey’s recent impoundment of water behind the Ilisu Dam on the Tigris, provide an example highlighting such challenges. While the need for collaborative approaches to sharing transboundary watercourses is evident, barriers to such collaboration are complex and sometimes deeply entrenched. Additionally, the responsibility of the international community for helping at risk communities maintain access to adequate water supplies cannot be overlooked.
The first few chapters of the monograph set forth the context of the problem. Chapter one briefly introduces the hydrologic cycle and current state of Earth’s ecological systems underlying the need for new developments in international water law. The second chapter is an overview of the Tigris-Euphrates river basin including its hydro-geography, climate and early history of water use. The third chapter describes the significance of the Mesopotamian Marshes themselves as a harbinger for the well-being of the people of Iraq. The fourth chapter examines the water projects that affect the Tigris-Euphrates Basin including controversy surrounding Turkey’s most recent filling of the Ilisu dam and the flooding of Hasankeyf.
Map of Iraq with the Tigris and Euphrates River Basins. Source: Library of Congress
Chapter five of the monograph outlines the law governing the Tigris-Euphrates Basin. The stance of the Tigris-Euphrates Basin states and their seeming embrace of outdated and conflicting approaches to resource allocation are examined. Existing agreements between the states, both colonial era and post-WWII, and the application of the UN Watercourses Convention are then examined. Finally, other approaches to managing conflict over ecological conditions are examined including a brief analysis of the Rhine Salt Case and the human right to water recognized by the UN General Assembly in 2010.
Chapter six discusses the topic of collaborative water management using the illustrative example of the Senegal River Basin. Three examples of conflict over transboundary watercourses, one historical and two current, are then provided in order to illuminate some of the barriers to collaboration. The first is a nineteenth century dispute between the United States and Mexico over the water of the Rio Grande, which resulted in the production of the Harmon Doctrine. The second provides an example of upstream hydro-hegemony in an overview of the problems arising from China’s development of the upper Mekong River and its impact on those living in the lower Mekong Basin. The third example outlines the problem of downstream hydro-hegemony in the dispute between Ethiopia and Egypt, its downstream neighbor on the Nile, over the building of Ethiopia’s Grand Ethiopian Renaissance Dam.
In conclusion, the need for concerted global intervention to maintain the livability of Earth and increase resilience in the face of the rapidly changing availability of resources will be explored and the clear need for a unified collaborative approach to such intervention reiterated.
The monograph is dedicated to Ms. Fadia Daibes Murad (1966-2009); in recognition of the courage, rigor, and dynamic intellect with which she advocated both for fairness in access to water resources and for gender equity in Palestine and the Middle East.
The following essay by Dr. Susanne Schmeier, Associate Professor at IHE Delft, summarizes her recent article entitled “Prior notification of planned measures: A response to the no-harm dilemma?“, which appeared in the journal International Environmental Agreements: Politics, Law and Economics. Dr. Schmeier can be reached at s.schmeier [at] un-ihe.org.
Disagreements
over whether a certain infrastructure scheme planned by one riparian country
would have negative impacts on or even substantially harm another riparian
state have occurred in numerous basins around the world. Examples include: the
dispute between Mekong riparian states over Laos’ mainstream hydropower dams;
the conflict between Ethiopia and Egypt over the Grand Ethiopian Renaissance
Dam (GERD) on the Nile River and its potential implications for Egypt’s water
security; the disagreement between India and Pakistan over a dam on the
Kishenganga River, a tributary to the Indus; and the conflict between
Tajikistan and downstream Uzbekistan over the Rogun Dam on the Vakhsh River, a
tributary of the Amu Darya.
Construction site of the Xayaburi Dam on the Lower Mekong River in 2013. Photo courtesy of Susanne Schmeier.
The
current surge in water infrastructure development – at least partly also driven
by attempts to reach the Sustainable Development Goals (SDGs) and to produce
clean energy in line with the commitments under the 2015 Paris Agreement –
combined with increasing pressure of global climate change on water resources
are likely to make such disagreements ever more common in the future. In some
cases, such disagreements can grow into full-fledged conflicts, with negative
repercussions on riparian states’ political and economic relations as well as regional
stability as a whole.
The two key substantive principles of international water law – the principle of equitable and reasonable utilization and the principle of no significant harm – aim to guide such developments in shared basins in a way that prevents conflict and ensures sustainable development. Their translation from abstract international law principles, even if codified in specific instruments – such as the 1997 UN Watercourses Convention or the 1992 Helsinki Convention – into tangible mechanisms that riparian states implement and comply with has, however, been challenging.
This
is where the procedural principle of prior notification (and often also
consultation or even prior agreement) comes in. It aims at facilitating the
process of implementing substantive international water law principles by
providing guidance on how to do so in specific situations in which one riparian
state aims to pursue a certain water infrastructure scheme that might
potentially affect others. It does so by providing guidance to (potentially
disagreeing) states on how to engage in pre-defined structure and cooperative
exchange and negotiations over whether a project planned by one riparian state
would indeed cause harm to another state, and whether that harm would be beyond
the significance threshold and/or be in violation of the principle of equitable
and reasonable utilization. This also helps keeping disagreements between the riparians
contained, and allows for addressing disputes in a clearly defined manner,
preventing escalation.
The
principle of prior notification is thus not only an important principle of
international water law that helps implement the two key substantive principles
of the international water law framework, but also an important instrument of
water diplomacy that contributes to the cooperative management of shared water
resources. This is the key argument of this article, which was published as
part of an entire Special Issue focusing on the current state of the principle
of no significant harm in international water law.
Dam near the city of Shiraz, Iran on the Rudkhaneye Khoshk (The Dry River). Photo courtesy of Susanne Schmeier.
Inspired by global and regional legal and political development, in recent years additional instruments have included the principle of prior notification in basin-specific arrangements. In Southern Africa, the 2000 Revised SADC Protocol on Shared Watercourses requires riparian states to shared watercourses in the region to implement the principle of prior notification. Accordingly, either basin treaties in the region have included the principle in their texts, or river basin organizations (RBOs) have developed subsequent instruments to ensure its implementation. In the Zambezi River Basin, for instance, Art. 16 of the 2004 Zambezi Agreement requires parties to notify other riparians of “any program, project or activity with regard to the Zambezi watercourse or which may adversely affect the watercourse or any other member state”. Shiraz iran river
In order to implement these commitments, the Zambezi Watercourse Commission developed Procedures for the Notification of Planned Measures. Likewise, the Permanent Okavango River Basin Water Commission developed Guidelines for Notification, Consultation and Negotiation despite the absence of any reference to prior notification (or any other substantive or procedural principle of international water law) in the 1994 Okavango Agreement. In other basins, such as the Congo, the Mekong and the Nile river basins, riparian states – often with the help of their basin organizations – have also developed subsequent legal or political documents that further specify notification processes (although not all have been adopted by riparian states or entered into force yet).
Prior notification does not come without challenges. Often reflecting underlying disagreements between a project planning and potentially affected states, various issues of discontent have arisen in basins that have undergone prior notification processes in the past. These relate, first and foremost, to the question: which projects require prior notification? There tends to be different views, especially by the project planning state and potentially affected states, on which projects fall under notification requirements, sometimes becoming a source of disagreement itself. Other questions relate to issues of timing (when to notify), the information to be provided to other riparian states and/or the basin organization, the process for doing so and for determining whether a project is likely to lead to significant harm, and whether or not the project should be pursued.
However, when implemented in shared basins, in the case of specific and often contested infrastructure development plans, the principle has proven to be of considerable value in supporting substantive water law principles. It has also served to contain disagreements among riparian states and encourage cooperation and exchange of perspectives. Thus, beyond its value in international water law – where exact interpretation and implementation remains contested in various basins – the principle of prior notification has undeniably fulfilled an even more important function: it provides riparian states in a shared basin with a mechanism for addressing disagreement over some of the most conflictual matters of sharing transboundary basins and, thus, for dispute prevention and mitigation that align water law with water diplomacy aims and approaches.
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