Archive for the ‘Middle East’ Category

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

Wednesday, July 7th, 2021

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

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

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

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

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

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

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

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

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

Monday, March 22nd, 2021

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

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

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

The Nile River Basin. Source: Nile Basin Initiative

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

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

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

The full article can be accessed here.

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

Wednesday, January 27th, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

You can access the monograph here.

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

Friday, June 30th, 2017

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

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

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

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

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

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

Grand Ethiopian Renaissance Dam

Grand Ethiopian Renaissance Dam

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

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

The entire article is available here.

 

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The Nile Basin Cooperative Framework Agreement: The Impasse is Breakable!

Monday, June 19th, 2017

The following post is by Dr. Salman M.A. Salman, an academic researcher and consultant on water law and policy and Editor-in-Chief of Brill Research Perspectives, International Water Law. Until 2009, Dr. Salman served as Lead Council and Water Law Adviser for the World Bank. He can be reached at SalmanMASalman [at] gmail.com.

A summit of the head of states of the Nile Basin countries is planned for June 22, 2017, in Entebbe, Uganda, to discuss the impasse over the Nile Basin Cooperative Framework Agreement (CFA). The summit is to be preceded by a meeting of the ministers of foreign affairs of the Nile countries on June 20 – 21, 2017. The purpose of this Note is to clarify the differences over the CFA, and to propose a roadmap for resolving these differences.

The CFA and the Differences Thereon

The Nile Basin Initiative (NBI) was born on February 22, 1999, in Dar-es-Salam, Tanzania, following the signing of the minutes of the meeting by nine of the Nile ministers of water resources in attendance. The NBI was facilitated by a number of donors led by the World Bank and the United Nations Development Programme (UNDP). The NBI was established as a transitional arrangement to foster cooperation and sustainable development of the Nile River for the benefit of the inhabitants of those countries. The NBI is guided by a shared vision “to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources.”

Work started immediately on the CFA, and lasted ten years. However, by 2009, major differences over some basic issues erupted, and could not be resolved, neither at the technical, nor at the political levels, leading to the impasse on the CFA. These major differences persisted as a result of the resurfacing and hardening of the respective positions of the Nile riparians over the colonial treaties, as well as the Egyptian and Sudanese claims to what they see as their acquired uses and rights of the Nile waters, and the rejection of these claims by the upper riparians.

Nile_Map_UpdatedThe first difference related to water security. Article 14 of the CFA required the Basin states to work together to ensure that all states achieve and sustain water security. However, this paragraph did not satisfy Egypt and Sudan who wanted to ensure, through an additional clause, that their existing uses and rights are fully protected under the CFA. Consequently, Egypt and Sudan demanded and insisted that Article 14 of the CFA should include a specific provision, to be added at the end of the Article, that would oblige the Basin states “not to adversely affect the water security and current uses and rights of any other Nile Basin State.” This demand was rejected by the upper riparains who saw it as a denial of the basic principle of equitable and reasonable utilization, and a breach of the vision of the NBI itself.

The second major difference related to the concept of notification, demanded by Egypt and Sudan and rejected by the upper riparians. The upper riparians saw it as a means for Egypt and Sudan to invoke the colonial treaties and their claim of veto power.

While the impasse persisted, on May 14, 2010, four of the Nile riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA in Entebbe, Uganda. They were joined five days later by Kenya, and by Burundi on February 28, 2011. The CFA has thus far been ratified by Ethiopia, Tanzania and Rwanda. It needs a total of six instruments of ratification/accession to enter into force. Egypt and Sudan continue to vehemently reject the CFA.

Developments Since Conclusion of the CFA

The upper riparians continued with their projects on the Nile notwithstanding the impasse over the CFA, and the erosion of the NBI. The Grand Ethiopian Renaissance Dam (GERD), which commenced in 2011, has proven a major challenge to, and a source of a bitter dispute between Ethiopia on the one hand, and Egypt and Sudan on the other. However, by December 2013, Sudan broke ranks with Egypt, and declared its full support of the GERD.

Egypt followed, albeit reluctantly, fifteen months later. Egypt, Sudan and Ethiopia concluded in March 2015, through their head of states the Agreement on Declaration of Principles on the GERD (DoP). Egypt and Sudan basically accepted, through the DoP, the GERD and declared for the first time ever “the significance of the River Nile as a source of livelihood and the significant resource to the development of the people of Egypt, Ethiopia and Sudan.” The three countries agreed further “to cooperate based on common understanding, mutual benefit, good faith, win-win, and the principles of international law, (as well as) in understanding upstream and downstream needs in its various aspects.” The DoP went on to state explicitly that “the purpose of the GERD is for power generation to contribute to economic development, promotion of transboundary cooperation and regional integration…”

The DoP included other provisions on equitable and reasonable utilization, the obligation not to cause significant harm, as well as peaceful settlement of disputes. It also contained explicit provisions on the GERD, including cooperation on filling its reservoir, as well as its safety. The DoP was confirmed nine months later through the signature by the three countries of the Khartoum Document in December 2015 at their 4th tripartite meeting.

Breaking the Impasse

These developments clearly annulled Egypt and Sudan previously held position of securing all the Nile waters for their exclusive use through existing uses and rights, and the veto power over other Nile countries’ projects. Equality of all the riparians, as pronounced by the Permanent Court of International Justice in the 1929 River Oder case, and reconfirmed by the International Court of Justice in the 1997 Gabčíkovo-Nagymaros Project case, is now fully accepted by Egypt and Sudan. Similarly, Egypt and Sudan have confirmed their acceptance of the basic and cardinal principle of international water law of equitable and reasonable utilization.

The consequent and logical step for Egypt and Sudan is to drop their demand for recognition of their existing uses and rights as a part of the water security paragraph of the CFA. Indeed, the whole section of the CFA on water security is no longer needed, given that the CFA includes the same provisions of the United Nations Watercourses Convention (UNWC) on equitable and reasonable utilization, as well as on the obligation not to cause significant harm. It is worth mentioning that the UNWC includes no provisions on water security, as this is not a legal concept – merely a political pronouncement.

The quid pro quo for Egypt and Sudan agreeing to drop their demand for recognition of their existing uses and rights is to include provisions in the CFA similar to those of the UNWC on notification. This should cause no alarm to the upper riparians as the basis of Egypt and Sudan of their veto power in case of notification – the colonial treaties – is no longer on the table since the two countries have accepted the principle of equality of all the riparians. Besides, notification could take place through the Commission to be established under the CFA, or through the ministerial council of the Nile Basin States as happened in the latter years of the NBI before the differences erupted over the CFA.

This compromise would address the concerns of both Egypt and Sudan on the one hand, and those of the upper riparians on the other. Its details can be successfully worked out through good faith negotiations, if the political will among the Nile riparians exist. Indeed, this political will is urgently needed to resolve the differences over the CFA and conclude an agreement that is inclusive of all the Nile riparians, so as to pull the 250 million inhabitants of the Nile Basin out of their poverty, underdevelopment, hunger and darkness.

 

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The Newest Transboundary Aquifer Agreement: Jordan and Saudi Arabia Cooperate Over the Al-Sag /Al-Disi Aquifer

Monday, August 31st, 2015

By Gabriel Eckstein

By any standard, Jordan and Saudi Arabia are two of the most water-scarce countries on the globe (see here and here). Hence, it is no surprise that the neighbors have long looked to the Al-Sag /Al-Disi Aquifer on their shared border as a partial source for relief. Until recently, though, competing water needs and a lack of knowledge about the aquifer complicated efforts at compromise. That complexity appears to have been surmounted. On 30 April 2015, the Hashemite Kingdom of Jordan and the Kingdom of Saudi Arabia entered into an agreement for the Management and Utilization of the Ground Waters in the Al-Sag /Al-Disi Layer (Arabic original / unofficial English translation).

Saq-Ram Aquifer Map

Saq-Ram Aquifer

 

The Aquifer

The Aquifer, known as Al Sag in Saudi Arabia and Al-Disi in Jordan, is a fossil transboundary aquifer containing water that accumulated 10,000-30,000 years ago. It is part of the western section of the Saq-Ram Aquifer System, a Paleozoic carbonate aquifer that spans nearly 308,000 km2 and is estimated to hold as much as 10 km3 of water in Jordan and 65 km3 in Saudi Arabia (see here).

Use of the Aquifer’s Water

Both countries began exploiting the Al-Sag /Al-Disi Aquifer in the late 1970s and 1980s soon after its discovery. In the 1980s, Saudi Arabia dramatically increased its extractions to support its wheat production. As a result, groundwater, which typically flowed toward Jordan, reversed to flow toward the Saudi well field. While Saudi Arabia greatly reduced its extractions in the 1990s, Saudi withdrawals in 2008 were estimated at over 1,000 MCM (see here).

In Jordan, the Al-Sag /Al-Disi Aquifer was initially only used as a local water supply. In the late 1980s, Jordan began developing agricultural activities along its southern border and now withdraws some 60 MCM. To overcome water scarcity in other regions of the country, in the 1990s Jordan conceived the Disi Water Conveyance Project (DWCP) to extract an additional 100-150 MCM of water that would flow through a 325 km pipeline from Disi to Amman. While the project failed to obtain World Bank support, Jordan pursued the DWCP on a build-operate-transfer basis with a Turkish contractor and water began flowing to Amman in 2013 (see here and here). The project became especially controversial in 2009 when an independent study revealed that water in the aquifer contained naturally-occurring radiation (20 times international levels regarded safe for drinking) and posed a potential health hazard (see here). Subsequent Jordanian tests claimed the water met all safety standards when diluted with clean water (see here).

Disi Water Pipeline (from Ferraginaa & Greco (2008). The Disi project: an internal/external analysis, Water International, Vol. 33(4)

Disi Water Pipeline (from Ferraginaa & Greco (2008). The Disi project: an internal/external analysis, Water International, Vol. 33(4)).

The Agreement

The Agreement over the Al-Sag /Al-Disi Aquifer is concise with four main articles. Article One contains terms and definitions; Article Two describes the main norms for managing the aquifer; Article Three discusses the creation and responsibilities of a Joint Saudi/Jordanian Technical Committee; and Article Four contains administrative provisions related to the implementation of the Agreement.

Notwithstanding its minimalist approach, the Agreement is noteworthy in a number of important ways. As a general matter, its very nature as an agreement over a transboundary aquifer is unique since today there is only one transboundary aquifer globally with a comprehensive management regime and two with more rudimentary consultative and data sharing arrangements (see here). This is in sharp contrast to the over 3,600 treaties relating to the use of transboundary surface waters that have been catalogued since 800 CE (see here).

More specifically, the Agreement imposes no numerical limitations on extractions. Rather, Article 2(1) creates a “Protected Area” of approximately 400 km2 within each country along the border where “all activities … which depend on the extraction of groundwater therefrom” must be discontinued within five years. In addition, Article 2(2) requires the Parties to maintain the Protected Area free from all activities that require groundwater. In effect, it creates a forbidden zone between the well fields of the two nations. When looking at the map accompanying the Agreement and the straight lines demarcating the Protected Area, it is unclear whether this zone is the result of unique hydrogeological conditions, or simply based on a desire to maintain a geographical buffer zone between the two parties.

In addition, the Agreement creates a broader “Management Area” that encompasses the Protected Area and spans approximately 1,000 km2 in each country.  Although water extractions are permitted from within the Management Area, but outside of the Protected Area, they are limited solely for municipal purposes. While the aquifer extends beyond the Management Area on both sides of the border, these regions are not subject to the Agreement. Whether this is intentional is unclear, however, some studies indicate that some sections of the aquifer are less productive while others are at depths where extraction is not economical (see here).

Read together, these provisions effectively protect ongoing water projects supplying villages and cities in both nations, including the DWCP. They also ensure both nations’ extractions for agricultural and other purposes in areas outside of each country’s Management Area. This is especially important for Saudi Arabia, since a large portion of the aquifer lies in that country. The absence of more detailed pumping restrictions, however, could be worrisome in the long run as projections indicate that current pumping rates will deplete the aquifer in Jordan by mid-century and in Saudi Arabia shortly thereafter (see here).

Also noteworthy is the near absolute prohibition in the Agreement on groundwater pollution. Article 2(4) prohibits horizontal or slant wells explicitly to avoid aquifer pollution, while Article 2(5) creates an affirmative obligation to both protect groundwater against “any pollution” as well as prevent the injection of “any pollutant” into the aquifer. The only caveat is the fact that these obligations are limited to the Management Area; there are no pollution-related or other provisions pertaining to areas outside of the Management Area.

A further unique development found in the Agreement is the creation of a Joint Technical Committee (JTC). It is unique because relatively few agreements over transboundary surface water, and only one for a shared aquifer, have created such mechanisms. In the case of the Al-Sag/Al-Disi Aquifer, while the JTC is entrusted with “the supervision of the implementation of the terms of this Agreement,” it does not have any decision-making authority. Rather, under Article 3(4), it is primarily responsible for monitoring both the quantity and quality of extractions, collecting and exchanging information, analyzing collected data, and submitting their findings to the competent authorities in both nations. Accordingly, it may be argued that derivative to the creation of the JTC is the Agreement’s recognition of the international water law principles of exchange of information and ongoing monitoring, as well as the more progressive notion that such endeavors should be pursued jointly (see Art. 2(3)).

While the Agreement is notable for what it includes, it is also significant for what is conspicuously absent from the text. Under contemporary international water law, including trends identified in the emerging international law of transboundary aquifers (see here), two cornerstone principles require: equitable and reasonable utilization, and no significant harm. Neither norm appears explicitly in the Agreement. Possibly, the prohibitions on extraction and types of uses within, as well as the de facto permissible uses outside of, the Management Area could be interpreted as a form of equitable and reasonable utilization. Similarly, the prohibitions on the pollution of the aquifer could be deemed a variation on the rule of no significant harm, at least for purposes of ensuring water quality. Such analyses could be investigated further through access to the negotiators and any documentation that underpinned the Agreement.

One additional well-accepted norm of international water law that is missing from the Agreement: prior notice of planned measures that may have a transboundary effect. However, since all activities requiring groundwater are prohibited in the Protected Area, and limited to municipal purposes in the remaining section of the Management Area, such notice obligations may be superfluous. Of course, it is unclear whether activities in other sections of the aquifer that traverse the Jordanian-Saudi border could have transboundary consequences.

Conclusion

Of the more than 600 transboundary aquifers and ground water systems that have been identified globally (see here), only a miniscule number have any cooperative arrangement among these critical subsurface water resources. Accordingly, the Agreement over the Al-Sag /Al-Disi Aquifer is a significant milestone. It suggests that states may be beginning to recognize the importance of their transboundary aquifers and the need to cooperate with their neighbors. Hopefully others will soon follow suit.

Posted in Middle East, Transboundary Aquifers | Comments Off on The Newest Transboundary Aquifer Agreement: Jordan and Saudi Arabia Cooperate Over the Al-Sag /Al-Disi Aquifer

State of Palestine Accedes to UN Watercourses Convention

Wednesday, January 7th, 2015

Jordan River Basin

Jordan River Basin

By Gabriel Eckstein

 

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

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

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

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

Posted in International Water Law, Middle East, UN Watercourses Convention, Water Conflicts | Comments Off on State of Palestine Accedes to UN Watercourses Convention

Israeli-Palestinian Agreement on Water within Sight

Wednesday, January 8th, 2014

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

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

Failings of the Oslo Process

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

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

Shared Water Resources of Israel, Palestine and Jordan

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

Breaking Away from the Oslo Model for Water

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

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

The Structure of the FoEME Proposal

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

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

 

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

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

 

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

Posted in Middle East, Transboundary Aquifers, Transboundary Rivers, Water Conflicts | 1 Comment »

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

Wednesday, March 6th, 2013

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

Battir agricultural terraces. Photo courtesy of The Advocacy Project.

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

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

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

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

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

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

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

 

Post Script (March 29, 2013)

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

Posted in Middle East, Water Conflicts | 2 Comments »

The Future of Africa’s Water Security

Sunday, May 27th, 2012

Special thanks to Kavitha Pramod for co-authoring this essay

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

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

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

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

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

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

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

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

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

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

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

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

 

Posted in Africa, Middle East, Transboundary Aquifers, Water Crisis | 4 Comments »