International Water Law Project Blog Transboundary Rivers Archives - Page 2 of 4

Archive for the ‘Transboundary Rivers’ Category

Midriver States: An Overlooked Perspective in the Nile River Basin

Monday, September 26th, 2016

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

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

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

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

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

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

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

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

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

Posted in Africa, Transboundary Rivers, Water Conflicts | Comments Off on Midriver States: An Overlooked Perspective in the Nile River Basin

The Helmand River and the Afghan-Iranian Treaty of 1973

Thursday, July 23rd, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted in Asia, Central Asia, Transboundary Rivers, Water Conflicts | Comments Off on The Helmand River and the Afghan-Iranian Treaty of 1973

Online Presentations on International Water Law and Policy

Thursday, June 18th, 2015

By Gabriel Eckstein

In recent years, technology has allowed us to become more informed and engaged at greater distances. This includes viewing lectures and presentations via the Internet. I wanted to draw your attention to a number of presentations on international water law and policy that were recently posted online and that may be of interest. If any of you know of other relevant lectures online, please do let me know via the comment box below or at iwlpwebsite [at] gmail.com.

On 22 May 2015, the Strathclyde Centre for Environmental Law and Governance at the University of Strathclyde in Glasgow, Scotland, organized two lectures as part of its SCELG Seminar Series.

Entry into Force of the United Nations Watercourses Convention: Why Should it Matter

Dr. Salman M.A. Salman, fellow with the International Water Resources Association, delivered a lecture in which he outlined the progressive development leading to the adoption of the United Nations Watercourses Convention, and comprehensively explained the importance and relevance of the Convention now it has entered into force. The seminar was supported by the Scottish Government. View the presentation here.

Transboundary Aquifers: An Interdisciplinary Conversation

Prof. Gabriel Eckstein, Professor of Law at Texas A&M University, gave a guest lecture on the challenges for transboundary aquifer law and governance. The lecture was followed by a roundtable discussion that also included an esteemed panel from the fields of hydrogeology (Prof. Robert Kalin, University of Strathclyde), human geography (Dr. Naho Mirumachi, King’s College London), and international water law (Dr. Salman M.A. Salman, International Water Resources Association). View the presentation and roundtable here.

Over the past few years, United Nations Audiovisual Library of International Law has organized a lectures series on various international issues, including International Watercourses.

Dr. Stephen C. McCaffrey, Distinguished Professor and Scholar at the University of the Pacific McGeorge School of Law, delivered a lecture on The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. This lecture provides an overview of the background and content of the Convention, and then examines the Convention’s influence. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

Dr. Salman M.A. Salman presented a lecture on The Evolution, Codification and Current Status of International Water Law. The lecture describes the developments in international water law since 1911. It reviews and analyzes the work of the Institute of International Law, the International Law Association, and the International Law Commission, paying particular attention to the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

Not long before he passed away in 2013, Ambassador Chusei Yamada, who served on the ILC during the drafting of the UN Watercourses Convention and later as Special Rapporteur for the ILC’s Draft Articles on the Law of Transboundary Aquifers, delivered a lecture on Codification of the Law on Transboundary Aquifers (Groundwaters) by the United Nations. The lecture describes how the UN International Law Commission, a subsidiary organ of the UN General Assembly with the mandate of codification of customary international law, formulated Draft Articles on the Law of Transboundary Aquifers (groundwaters) for the proper management of the transboundary aquifers in order to attain the reasonable and equitable utilization through international cooperation. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

The Global Environmental Facility Groundwater Community of Practice, coordinated by UNESCO-IHP, has featured a of seminars on groundwater law and policy.

Webinar #1, which took place 17 October 2013, was entitled Multiple Dimensions of Groundwater Governance: What We Are Doing and What More Can We Do? The video and webinar material can be accessed here.

Webinar #2, which took place 11 December 2013, was entitled Groundwater and International Law: Current Status and Recent Developments. The video and webinar material can be accessed here.

Webinar #3, which took place 29 April 2014, was entitled The Coastal Zone: Where Groundwater Merges With the Sea. The video and webinar material can be accessed here.

On 15 January 2015, IGRAC and UNESCO-IHP organized the IW:LEARN Groundwater Webinar entitled: Moving with the Momentum: Reviewing Lessons for Groundwater from 2014 and a Looking Ahead to 2015. Part I of this program can be accessed here / Part II can be accessed here.

Posted in International Water Law, New Resources & Information, Transboundary Aquifers, Transboundary Rivers, UN Watercourses Convention | Comments Off on Online Presentations on International Water Law and Policy

Dr. Maria Querol: The UN Watercourses Convention and South America

Thursday, August 21st, 2014

The following post by Dr. Maria Querol is the ninth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Querol is an international law consultant with a vast background in international water law. She can be reached at maria.querol [at] gmail.com.

Introduction

Although the 1997 UN Watercourses Convention (UNWC) has finally entered into force, not one South American country is among its State Parties. Whilst Brazil, Chile, Uruguay and Venezuela voted in favour of its adoption at the UN General Assembly (UNGA), Argentina, Bolivia, Colombia, Ecuador, Paraguay and Peru all abstained. Paraguay and Venezuela were the only states from the region to sign the Convention, in 1997 and 1998 respectively. Nevertheless, neither has made any attempt to ratify it.

Many arguments have been presented to justify this flagrant absence, mainly focusing on the concern of South American states regarding challenges to their sovereignty over water resources flowing through their territories. However, this is not the only factor to be considered when analysing the region’s position on this topic.

Multilateral transboundary water treaties of South America

South American states have a history of concluding international treaties to regulate the management of their shared watercourses. This long-standing tradition favors the implementation of specific mechanisms and international water law norms over more general regimes. While most of these agreements are bilateral, there are four exceptions: the 1969 Treaty of the River Plate Basin, the 2010 Guarani Aquifer Agreement, the 1978 Amazon Cooperation Treaty, and the 1995 Agreement constituting the Tri-National Commission of the Pilcomayo River Basin.

The Plate Basin Treaty entered into force for Argentina, Bolivia, Brazil, Uruguay and Paraguay on 14 August 1970. It operates as an umbrella for other more specific agreements, both bilateral and multilateral, that have been concluded with regard to particular transboundary watercourses within the basin. Article VI of this agreement foresees the possibility that its Contracting Parties may conclude specific, partial, bilateral, or multilateral agreements designed to develop the basin. Accordingly, the Guarani Aquifer Agreement was concluded within the framework of the Plate Basin Treaty. Thus, the basin is regulated with an intergrated approach, both from a general and a more specific standpoint.

Transboundary watercourses are regarded in the region as shared natural resources. This view was particulary emphasized by both Argentina and Uruguay in the 1975 River Uruguay Statute and reaffirmed in 2010 in the Pulp Mills case before the International Court of Justice (ICJ). In this regard, Argentina argued in its memorial to the Court that “[t]he shared nature of the River Uruguay is also apparent from the fact that obligations are imposed on Argentina and Uruguay at an international level. The 1975 River Uruguay Statute is actually a repository for th[ose] international obligations”. Those obligations comprise the rules of no significant harm, equitable and reasonable use, and prior notification. It is important to bear in mind that these general norms are only applicable to the use and protection of shared natural resources as long as the states sharing the resource have not implemented a more specific conventional regime. Accordingly, Argentina also declared that while the River Uruguay Statute had been concluded 22 years before the UNWC was adopted by the UNGA, “the Statute provides for the establishment of a system of co-operation which is far more rigorous than that laid down by the Convention.”

The Amazon Cooperation Treaty was adopted by Bolivia, Brasil, Colombia, Ecuador, Perú, Suriname and Venenzuela to promote equitable and mutually beneficial results in the Amazon territories under their respective jurisdictions. It entered into force on 12 August 1980. The no harm rule and the reasonable and equitable principle are enshrined in Article I of the agreement. The no harm rule is also implicit in Article XVI as it stipulates that the decisions and commitments adopted by the State Parties to the treaty shall not be to the detriment of projects and undertakings executed within their natural territories, in accordance with international law. In addition, Article V prescribes the rational utilization of the water resources of the Amazon System. Periodic exchange of information among all the State Parties is also provided for in Articles I, VII and XI.

By virtue of an amendment to Article XXII of the Amazon Cooperation Treaty, the Organization of the Treaty of Amazon Cooperation was created with the view of further strengthening and ensuring the more effective implementation of the goals of the Treaty. The existence of an international legal entity directly regulated by public international law no doubt facilitates the realization of projects and can provide guidance for the rational utilization and sustainable management of shared water resources in the Amazon region.

Although the Amazon Cooperation Treaty does not prescribe a dispute resolution mechanism, State Parties can agree to submit their disputes to an arbitral tribunal or a permanent judicial organ such as the ICJ. They can also resort to a political dispute resolution method such as mediation or good offices. In any case, states are always bound by the customary obligation to negotiate a solution to their disputes in good faith.

Transboundary water management in South America

Unlike the practice in other regions of the world, discussions over shared water resources in South America, more often than not, take place under a cordial atmosphere. Although information exchange among states does take place in the region, the necessary data may be scattered around in different institutions, in which case its collection can prove quite burdensome. With reference to dispute resolution, South American states have been resolving their issues through direct negotiations and in some cases, as between Argentina and Uruguay, through the ICJ. Whilst progress has been made in terms of cooperation and knowledge over the management of shared surface water resources, this is not the case with regards to all shared groundwater. A first step forward has indeed been taken with regards to the Guarani Aquifer. But, further in-depth knowledge is necessary to provide a more complete scenario of all the possible consequences of human action related to transboundary groundwater resources.

Currently, South American states do not appear to have an immediate interest in a universal framework treaty to regulate the management of their transboundary water resources. Rather, they would prefer to continue resorting to their existing bilateral and multilateral agreements and to applicable customary norms in the absence of such treaties. They even count on international organizations to help implement their preferred management regime in the case of the Amazon Basin, and through a framework agreement for the Plate Basin.

This does not mean that the UNWC will have no value to South America. To the extent that the Convention codifies general international rules, its norms are binding on all states of the international community, including those of South America. In addition, the entry into force of the UNWC might foster the development of new customary norms in areas not yet covered by the existing regional treaties and could prove very influential in the interpretation of those particular treaties.

Posted in Latin America, South America, Transboundary Rivers, UN Watercourses Convention | Comments Off on Dr. Maria Querol: The UN Watercourses Convention and South America

Dr. Salman M.A. Salman: Entry into Force of the UN Watercourses Convention – Where are the Nile Basin Countries?

Monday, June 2nd, 2014

The following post, by Dr. Salman M. A. Salman, is the second in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Salman is an academic researcher and consultant on water law and policy. 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. This post is being published simultaneously in this blog as well as in Dr. Salman personal web site (www.salmanmasalman.org).

The year 1997 was a defining point in history for both the Nile Basin countries and the UN Watercourses Convention. At the beginning of that year, informal contacts facilitated by The World Bank and United Nations Development Programme (UNDP) resulted in a preliminary agreement to establish, for the first time, a forum inclusive of all the Nile riparian countries. In May of the same year, the UN General Assembly (UNGA) adopted the UN Watercourses Convention by a large majority, paving the way for its entry into force and effect. Unfortunately, that point in history also turned out to be a departure point as none of the Nile riparian countries became a party to the UN Convention. This essay addresses the reasons behind this sad fact.

Pursuant to the 1997 contacts and the subsequent facilitation by the World Bank and UNDP, the Nile Basin Initiative (NBI) was formally established by the Nile Basin states at the meeting of their Ministers of Water Resources in Dar-es-Salaam, Tanzania, February 22, 1999. The Agreed Minutes of the meeting, signed by the Ministers in attendance, included the overall framework for the NBI and its institutional structure and functions. 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” (see here). The main objective of the NBI was to negotiate and conclude a cooperative framework agreement that would incorporate the principles, structures and institutions of the NBI, and that would be inclusive of all Nile riparians.

The Nile River Basin. Source: Nile Basin Initiative

Work on the Nile Basin Cooperative Framework Agreement (CFA) commenced immediately after the NBI was formally established in 1999, and continued for more than ten years. However, the process ran into major difficulties as a result of the resurfacing and hardening of the respective positions of the riparians. Egypt and Sudan, the two lower riparians, insisted on the validity and binding obligations on the upper riaprians of the treaties concluded in 1902 and 1929, which the upstream riparians have persistently and completely rejected. Those two treaties purportedly give Egypt and Sudan veto power over any project in any of the upper riparian states. Moreover Egypt and Sudan insisted on their claims to their acquired rights and uses of the Nile waters under the 1959 Nile Waters Agreement, which the upper riaprians also squarely rejected since it left no Nile waters for them. Those differences persisted and could not be resolved at the negotiations level. They were eventually taken to three ministerial meetings in Kinshasa, Alexandria, and Sharm El-Sheikh in 2009 and 2010. However, these meetings failed to resolve these issues and no agreement on the final draft CFA was reached.

On May 14, 2010, four of the Nile riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA. They were joined five days later by Kenya, and by then Burundi on February 28, 2011. Although the Democratic Republic of Congo and the newly independent nation of South Sudan both indicated their support for the CFA, neither has signed or become a party to the instrument. Ethiopia eventually ratified the CFA in June 2013, but no other signatory state followed. The CFA needs six ratifications to enter into force and effect.

Egypt and Sudan vehemently oppose the signed version of the CFA because it does not incorporate their concerns under the 1902, 1929 and 1959 treaties. As a result, the division of the Nile basin countries into lower and upper riparians have sharpened and escalated.

Similar to the UN Watercourses Convention, the CFA lays down basic principles for the protection, use, conservation and development of the Nile Basin. These include cooperation among the states of the Nile River Basin on the basis of sovereign equality, territorial integrity, mutual benefit and good faith, sustainable development, equitable and reasonable utilization, and prevention of significant harm, as well as procedures for settlement of disputes. Cooperation is clearly and unequivocally the defining and common theme of the two instruments.

Yet, despite the similarities between the two instruments, the position of the Nile-riparian countries toward the UN Convention varies significantly. When the Convention came before the UNGA, Kenya and Sudan voted in favor, while Burundi joined Turkey and China in their negative vote. Egypt, Ethiopia, Tanzania and Rwanda abstained, each for different reasons, while Uganda, the Democratic Republic of Congo and Eritrea did not participate in the vote. As of today, none of the Nile riparian countries has signed or ratified the UN Watercourses Convention; not even Kenya or Sudan, which voted for the Convention. In contrast, Ethiopia, Kenya, Uganda, Tanzania, Burundi and Rwanda signed the CFA, and Ethiopia ratified it.

This may seem baffling. Why would the six countries that signed the CFA refuse to join the UN Watercourses Convention, given that the CFA is derived from and largely based on the Convention? The answer rests with the controversies surrounding the Nile treaties referred to above. The six upper riparians that signed the CFA do not want to be parties to a Convention that includes clear and detailed obligations for the notification of other riparians of planned measures and projects in their territories that may affect the Nile. They are concerned that such notification obligations would be construed by Egypt and Sudan as recognition of the 1902 and 1929 treaties that give Egypt and Sudan veto power over upstream activities. Indeed, this is the main reason that the CFA does not include provisions on notification, only on exchange of data and information.

On the other hand, Egypt and Sudan cling strongly to their historical rights and uses and both believe that the UN Watercourses Convention tilts towards equitable and reasonable utilization at the expense of the obligation not to cause significant harm. As lower riparians with claimed historical rights over the Nile waters, their cardinal principle is the obligation not to cause significant harm. They read the decision of the International Court of Justice in the Gabcikovo-Nagymaros Project case (Hungary/Slovakia) (ICJ 1997) as heightening and underscoring their concern that the Convention may have subordinated this obligation to the principle of equitable utilization. For this reason, they would not accede to the Convention.

Thus, for the eleven Nile riparian countries, accession to the UN Watercourses Convention is deeply intertwined with the controversies regarding the so-called “colonial Nile treaties.” In particular, Egypt and Sudan’s position reflects a major failure by both countries to view cooperation, equitable and reasonable utilization, and the obligation not to cause significant harm, as all closely related and interwoven, and not as separable elements of international water law. Thus, any attempt to resolve the pending issues under the CFA, the Grand Ethiopian Renaissance Dam (GERD), or accession to the UN Watercourses Convention will prove futile until Egypt and Sudan recognize that these treaties are outdated and non-functional because they have simply been totally ignored by the other riparians, both in theory and in practice.

Indeed, it is time for both Egypt and Sudan to remove these “colonial treaties” out of the flow of Nile negotiations and to join both the CFA and the Convention. Such a bold, albeit realistic, step would generate a new and genuine spirit for cooperation among the Nile states, and reignite the world community’s goodwill for the region. It will also pave the way for an equitable sharing of the benefits of the common Nile waters by the eleven riparians, without real harm to either Egypt or Sudan.

In turn, these events will no doubt end the current sad state of affairs of conflict and disputes over the Nile, and help lift the 300 million inhabitants of the Nile from their ever-increasing misery, poverty and underdevelopment. After all, the vision of the NBI itself, which Egypt and Sudan subscribed to in 1999, is to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources. Indeed, this is what both the CFA and the Convention are about.

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

Posted in Africa, International Water Law, Transboundary Rivers, UN Watercourses Convention | 3 Comments »

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.

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

The 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 »

Sharing Central Asia’s Waters: The Case of Afghanistan

Saturday, January 19th, 2013

The following post is by Margaret J. Vick. Ms. Vick served as the embedded advisor to the Ministry of Energy and Water, Government of the Islamic Republic of Afghanistan from 2009-2010 in a program funded by USAID. She can be reached at mjvick [at] gmail.com.

Afghanistan has four major river basins. All are international watercourses as that term is defined in the 1997 UN Convention on the Law of Non-navigational Uses of International Watercourses. When looking at the waters in Afghanistan the regional history cannot be ignored and the circumstances that often provide an impetus to negotiate water-sharing agreements should be examined.

The major basins in Afghanistan are the Panj and Amu Darya, the Kabul, the Helmand, and the Hari-Rud. The Panj, a tributary of the Amu Darya, is shared with Tajikistan and the downstream Amu Darya is shared with Uzbekistan and Turkmenistan. The Kabul River is tributary to the Indus River and is hydrologically shared with India and Pakistan, but because of the division of the basin by the 1960 Indus Waters Treaty, is not legally shared with India. The Hari-Rud is shared with Iran and Turkmenistan, while the Helmand River is shared with Iran. The Panj/Amu Darya, Hari-Rud, and Helmand river basins are all endorheic or terminal basins.
Of the four basins, only the Helmand River has a water sharing agreement. The Helmand River Treaty between Afghanistan and Iran was negotiated in the early 1970’s and entered into force in 1977 (see, e.g., here). The history of the treaty is unclear. Little has been written about the negotiation process and some recent commentaries have questioned its entry into force (see, e.g., here). What is known is clouded by the cold-war era in which it was negotiated. Nevertheless, the treaty is an agreement based on modern principles for benefit sharing in a region with few positive examples.

The Kabul River flows to the Indus River. Because some of its tributaries (namely the Bara, Kunar and Swat, rivers) originate in Pakistan, the Kabul basin forms a hydrologic phenomenon in which Afghanistan and Pakistan are both upstream and downstream from each other. Both countries need better flood control measures on the river and Afghanistan is interested in the river for domestic water supplies and power generation for its capital city, Kabul. Talks between the two riparians over water management, however, historically have been secondary to the cross-border tensions.

The Panj River, which forms a considerable portion of the Afghanistan-Tajikistan border before being joined the Vakhsh River to form the Amu Darya, is dominated by remnants of the Soviet barter system of water for oil. The economy of the region is hampered by a lack of energy, frequent flooding, and political conflict over water. All four of the Panj/Amu Darya basin riparians (Afghanistan, Tajikistan, Uzbekistan, and Turkmenistan) could benefit from developing the basin. Afghanistan, however, has not participated in any of the numerous agreements regarding the Aral Sea and was never part of the Soviet water regime in the region. Because of its outsider status it may be able to play an important role in regional water sharing discussions in the future.

In fact, Afghanistan and most of its neighboring states are in need of water for domestic purposes, reliable irrigation supplies, flood control and hydropower. The circumstances seem ripe for an agreement. Nevertheless, in this region of conflict, cross-border incursions and lack of trust, circumstances and needs may not enough to reach a water-sharing agreement. The identified requirements and the political will of the countries, to date, has not been enough. There needs to be a foreseeable and reliable means to accomplish the sharing of water.

As a result of decades of conflict, the human capacity in Afghanistan is limited due to the millions of people killed, the millions who fled the country, and the millions more denied an education. Those few Afghans who are available to negotiate water-sharing agreements are highly skilled and dedicated; yet, the need for their services within Afghanistan is immediate and immense.

Water sharing agreements take time and commitment. The Afghan government must decide how to best use their limited capacity. If they cannot have certainty as to whether agreed-upon dams, power plants and infrastructure will be built, how should they allocate and dedicate their limited resources? The Afghan Government is faced with the dilemma of which comes first: the agreement or the commitment to build the infrastructure. Until one or more donors step forward to fund both the process for negotiations and the infrastructure, neither may occur. Individuals within the Afghan government have little time and few resources to engage in protracted negotiations without a promise of results on the ground.

A donor’s commitment to build watercourse infrastructure made contingent upon a water-sharing agreement has been a common impetus for agreements on international watercourses and for states within a federal system. The 1960 Indus Waters Treaty took decades to negotiate and required continuing commitments from the World Bank to fund its implementation. It is presently unclear whether such a commitment is available for any of the basins shared by Afghanistan and the neighboring states.

The economic viability of Afghanistan depends on protection from floods and drought, adequate domestic supply, reliable irrigation, and power. All can be advanced through water-sharing agreements with neighboring states. Development of the Kabul River basin is key for stability in the southeastern region as is development of the Panj basin in the north.

Notwithstanding, until an external commitment is secured for technical support and training for the process of negotiation, as well as to implement the results of negotiations, the benefits of Afghanistan’s and the region’s transboundary rivers will remain unrealized.

Posted in Asia, Central Asia, Transboundary Rivers | 2 Comments »

Minute 319: A Creative Approach to Modifying Mexico-U.S. Hydro-Relations Over the Colorado River

Monday, December 10th, 2012

The following post is by Regina M. Buono, an associate attorney with the law firm of McGinnis, Lochridge, & Kilgore L.L.P in Austin, Texas. She can be reached at rbuono [at] mcginnislaw.com or found on Twitter as @ReginaBuono.

The Colorado River provides water to more than 36 million people in the western United States and Mexico. Management of the river is governed by the Treaty for the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, which was signed in 1944 (“1944 Water Treaty”). While the treaty is generally viewed positively for having served as a basis for successful cooperation for nearly 70 years, efforts to comply with its terms have occasionally been strained. This was especially evident early last decade when Mexico fell behind in treaty-mandated water deliveries to the Rio Grande as a result of a prolonged regional drought.

In response to ongoing climatic changes and uncertainties, the 1944 Water Treaty was recently amended by Minute 319 to provide for both nations to share surpluses and water shortages, permit Mexico to store some of its allotted water in the United States, facilitate investment in Mexico’s water infrastructure, and restore the environmental flows of the Colorado River to the Gulf of California, albeit on an experimental scale.

Minute 319 allows Mexico, which has a dearth of storage capacity, to store some of its Colorado River allotment in Lake Mead, located in Arizona and Nevada. This arrangement is an extension of Minute 318, which modified the 1944 Water Treaty after an earthquake in the Mexicali Valley in 2010 severely damaged Mexico’s canal-based water distribution system. In addition to enhancing Mexico’s storage capacity and water security, the deal helps keep the water level in Lake Mead more predictable, which in turn protects the water intake pipes that supply the vast majority of Las Vegas’ drinking water. Minute 319 also grants the U.S. a one-time allotment of 124,000 acre-feet of water in return for U.S.-financed infrastructure improvements in Mexico. The infrastructure improvements are intended to generate water savings that will benefit all river users.

In addition, the amendment permits the U.S. to send less water to Mexico in drought years, thereby sharing the burden previously borne solely by U.S. water users. It allows for the creation of an Intentionally Created Mexican Allocation (“ICMA”), wherein Mexico may adjust its water delivery schedule to allow for later use. Mexico may adjust its order in dry years to offset the mandated reduction with deliveries from the ICMA or other water previously deferred. In years in which Lake Mead is projected to be at or above certain elevations and in which Mexico has deferred delivery of or created a certain minimum amount of water, Mexico may increase its order for river water in specified increments based on the water elevation. However, the annual delivery of deferred water may not exceed 200,000 acre-feet and total annual delivery may not exceed 1.7 million acre-feet.

Finally, the amendment creates a pilot program to provide water to be used as environmental flows for the Colorado River delta, which will benefit the river and the myriad species that are found there. The delta has been largely dry for decades; most years the flow of the river is diverted before reaching its mouth at the Upper Gulf of California, leaving the river channel completely dry more than 90 percent of the time and damaging the delta ecology and wetlands that once covered the region. Minute 319 requires water users in the U.S. and Mexico to provide a one-time high-volume “pulse” flow of 105,000 acre-feet, which will augment base flows secured by a water trust since 2008. Scientists and advocates hope that the pulse and base flows will create 2,000 acres of new wetland habitat and will lay the groundwork for more extensive restoration projects.

Minute 319 offers a number of benefits for both nations, as well as the water utilities and environmental organizations that depend on and care for the river. On a practical level, Minute 319 provides water departments, cities, states, and other political subdivisions that rely on the Colorado River for fresh water with the added benefit of certainty and peace of mind, which will allow them to make better business decisions and allocate risk more precisely. Moreover, investment in Mexico’s infrastructure (e.g., concrete-lined canals instead of the current dirt channels) will benefit water users throughout the basin as a result of greater efficiency and reduced waste, which will allow conserved water to be shared with those entities that helped finance improvements.

Although the amendment has generally been received favorably by water and governmental entities alike, it is not without its critics. Not everyone shares the opinion that allowing Mexico to store water in the lake is an unqualified good, and some have voiced resentment that domestic water users have not been granted the same flexibility. The Imperial Irrigation District, a primarily agricultural water district in California and the largest single recipient of Colorado River water, refused to sign the agreement because it wanted to have the same ability as Mexico to bank its water in Lake Mead. Some parties have expressed concern that keeping more water in Lake Mead means that less water will be available for hydroelectric power generation and, because water levels in the lake serve as a drought indicator, that changes in the lake’s levels due to Mexico’s ability to store water could delay a declaration of drought, in turn postponing necessary distribution reductions. The Confederación Nacional de Campesinos, Mexico’s national farmers’ association, has also expressed concerns, calling upon farmers to present a “united front” against the agreement, which it believes will harm agricultural producers’ economic interests.

Despite differences of opinion over its impact, the most important aspect of Minute 319 may be the basis it creates for future cooperation as the river is further impacted by overuse, drought, and climate change. Scientific research and environmental models have demonstrated that the American southwest has been impacted by and will continue to suffer from the effects of climate variability. It is also an area with a rapidly growing population. While the region presents a challenge to water and environmental scientists and managers, as well as for society generally, this agreement may serve as an example of creative cooperative management for other countries facing water-related challenges. Disagreements over water resources are projected to be a leading cause—if not a primary cause—of cross-border social and political conflict in decades to come. Accordingly, strengthening ties between Mexican and U.S. governmental officials, scientists, and water managers is critical for facilitating future cooperation and minimizing tensions. The successful completion of this negotiation presents a precedent for cooperation going forward, and the relationships forged in the process will be valuable for future compromises over the management of the Colorado River, as well as other transboundary waters on the border.

Minute 319 is limited to a term of five years. The short duration may have been necessary to facilitate the amendment’s acceptance by Mexican officials, as Mexico has long considered the 1944 Water Treaty to be inviolable and complained about American management practices. Nevertheless, officials on both sides have expressed the hope that the Minute’s implementation may be extended in the future.

Posted in International Water Law, Mexico-US Border, North America, Transboundary Rivers | Comments Off on Minute 319: A Creative Approach to Modifying Mexico-U.S. Hydro-Relations Over the Colorado River

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

Tuesday, February 14th, 2012

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

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

The Nile Basin Countries

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

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

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

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

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

NEL COM Ministers

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

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

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

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

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

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

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

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

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

Posted in Africa, International Water Law, Transboundary Rivers, Water Conflicts | Comments Off on Outcome of the Nairobi Nile Council of Ministers Meeting – An Inevitable Consequence of a level-playing field?

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

Sunday, February 12th, 2012

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

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

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

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

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

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

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

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

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

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

Posted in Central America, International Water Law, Transboundary Rivers, Water Conflicts | Comments Off on Nicaragua and Costa Rica Return to the ICJ for 3rd Case over the San Juan River

International Water Law Project Blog