The Agreement on the Guarani Aquifer enters into force: what changes now?

November 16th, 2020

The following essay is by Dr. Pilar Carolina Villar, Professor at Federal University of São Paulo (UNIFESP). She can be reached at pcvillar [at] gmail.com.

The Agreement on the Guarani Aquifer (Portuguese, Spanish, English unofficial), ratified by Argentina, Brazil, Paraguay, and Uruguay, will enter into force on November 26, 2020. After a lengthy waiting process, the countries have finally and officially determined that they can now resume their efforts to pursue cooperation. The Guarani Aquifer was the focus of a long cooperative process that began within the epistemic community in the 1990s. That focus was transferred to the four Guarani States and international organizations between 2000 and 2009, which culminated in August 2010 with the signing of the agreement in San Juan, Argentina.

Guarani Aquifer

The water community extensively celebrate this achievement for the following reasons: a) it was a specific agreement for a transboundary aquifer, which is rare in the global context; b) the agreement specifically referenced United Nations General Assembly Resolution 63/124 (2008) pertaining to the Draft Articles on the Law of Transboundary Aquifers, thereby emphasizing the importance of this document; c) it included the main principles of international water law reinforcing their applicability to aquifers; d) it was the first specific agreement for a transboundary aquifer in Latin America and could encourage the conclusion of other similar agreements; e) it represented the continuity of the cooperative process established between the countries within the scope of the Guarani Aquifer System Project; and f) it was an example of preventive diplomacy, without conflicts over the use of groundwater.

However, over the past decade, the initial optimism for this treaty to enter into force had cooled down. Article 21 determined that the agreement would enter “into force on the thirtieth day following the date of deposit of the fourth instrument of ratification” with the Federative Republic of Brazil, which was assigned as the custodian of the agreement and the instruments of ratification. Argentina and Uruguay ratified the treaty by enacting Law No. 26,780/2012 and Law No. 18,913/2012, respectively. Brazil recognized it through Legislative Decree No. 52/2017 and Paraguay through Law No. 6037/2018. However, Paraguay’s instrument of ratification was not deposited with Brazil until October 2020.

The entry into force of this agreement allows the promised innovation initiated in 2010 to be implemented; however, the delay in the process raises the question of when and if this cooperative process will come to fruition. The agreement, which focuses on the transboundary water resources of the Guarani Aquifer System (SAG), represents a flexible cooperation tool and obligates the four aquifer States to manage them in accordance with the rules of international law. Table 1 shows the main characteristics of the agreement.

Table 1. Key elements of the Guarani Aquifer Agreement

The entry into force of the agreement will allow the Guarani States to deepen the cooperation process presupposing the following steps: a) creation of a commission for the Guarani aquifer (art. 15); b) defining the arbitration procedure for settling disputes by issuing an Additional Protocol (art. 19); c) implementing groundwater cooperation programs (art. 12) and d) identifying critical areas, especially in border areas where the flow is transboundary. Of these actions, the most urgent undoubtedly is the creation of the commission, which is responsible for coordinating cooperation in compliance with the principles and objectives of the agreement. Without the creation of the commission with a statute to define its structure and powers, the agreement will have limited effectiveness in the regional context.

The realization of the international project Implementation of the Guarani Aquifer Strategic Action Program: Enabling Actions – with the participation of the four countries, the Global Environmental Facility as financier, and UNESCO as the executive agency, and with technical support from the Regional Center for Groundwater Management (known as CeReGAS) – can encourage the Guarani States to implement the agreement and establish the commission.

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Implementing International Watercourses Law through the WEF Nexus and SDGs: an Integrated Approach Illustrated in the Zambezi River Basin

September 28th, 2020

The following essay by Dr. Zeray Yihdego and Julie Gibson is a summary of their recently published monograph (under the same title), which appears in Vol. 5(3) 2020, pp. 3-90 of Brill Research Perspectives in International Water Law.  Dr. Yihdego is Professor and Chair of Public International Law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego@abdn.ac.uk. Ms. Gibson is a Doctoral Researcher with the Strathclyde Centre for Environmental Law and Governance, Strathclyde School of Law. She can be reached at julie.gibson@abdn.ac.uk.

Over the past few decades, in an attempt to balance the competing uses and trade-offs on international watercourses, a number of water resources management paradigms have been developed. From Integrated Water Resource Management (IWRM) and water security to nature-based solutions and the Water-Energy-Food (WEF) Nexus, each framework has applied a new lens through which to view the governance of transboundary resources. These frameworks have undoubtedly proved useful, each approaching water governance from a different perspective allowing both synergies and gaps across multiple sectors and uses.  However, in many cases, each of these frameworks function within their own body of research and fail to identify overlaps and duplication of efforts. And each one attempts to ‘reinvent the wheel’ rather than focussing on long-term solutions and taking a holistic perspective of the frameworks already in existence.

Existing largely separated from these policy sphere frameworks is International Watercourses Law (IWL). IWL provides a number of key principles including equitable and reasonable use and the duty to prevent significant harm, which have become the foundation of many water governance regimes. Yet, in many ways, IWL provides only a broad framework for States to follow and is not sufficient to systematically consider the trade-offs of water use across multiple sectors such as energy and food.

Both areas – of policy and of law – bring clear benefits. Policy frameworks often provide more ambitious targets, which may be more tangible than IWL, as can be seen within the Sustainable Development Goals (SDGs). They may also be more industry/business focused, as is the case with the WEF nexus and can look for more scientific solutions to transboundary water governance. In this sense, policy frameworks can, therefore, fill some of the gaps which exist within the body of IWL. But the use of certain policy frameworks may be fleeting. Development agendas expire and notions of water security or nature-based solutions fall in and out of fashion. Thus, by linking to IWL, the temporal scope of these agendas can also be lengthened, underpinned by a legal framework, thereby demonstrates only one of the benefits of integration.

This monograph tests this theory of integration by viewing IWL, the WEF Nexus and the Sustainable Development Goals in an integrated manner termed the Law, Nexus Goals (LNG) approach. It explores the extent to which the WEF Nexus and the SDGs can support a progressive, realistic and balanced interpretation of the core principles of IWL and the cardinal rule of equitable and reasonable use in particular. Specifically, it asks and demonstrates how the SDGs and WEF Nexus could be mutually supportive in tackling the tension between competing uses and trade-offs between sectors.

This LNG approach is applied to the case study of the Zambezi River Basin, an extremely complex and fast-developing watercourse with a strong history of cooperation. Our findings demonstrate that even where sound IWL frameworks and cooperative processes exist, this does not guarantee a focused, measurable and sustainable outcome that is capable of addressing tensions among riparian and competing water uses in all cases. A more integrated and holistic framework could go some way to developing a more comprehensive and progressive water governance approach within transboundary river basins.

Zambezi River (courtesy of Sean Peter)

The monograph presents a perspective of integrated governance, bridging both law and policy. It illustrates the complexities of managing shared water resources that are subject to multiple uses – as illustrated through the Zambezi – and demonstrates how making the most of existing frameworks, rather than forming new ones, could be a positive driver for strengthened IWL implementation.

The monograph is derived from research conducted under the €5.5M four-year EU Horizon 2020 funded DAFNE project, which concerns the promotion of integrated and adaptive water resources management. The project explicitly addresses the WEF Nexus and aims to promote a sustainable economy in regions where new infrastructure and expanding agriculture has to be balanced with social, economic and environmental needs. The project takes a multi- and interdisciplinary approach to the formation of a decision analytical framework for participatory and integrated planning to allow the evaluation of decisions based on social, economic and environmental needs, thereby reflecting sustainable development. The monograph, therefore, derives its perspectives from the interdisciplinarity within the project.

You can access the monograph here.

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The Geneva List of Principles of the Protection of Water Infrastructure: An Assessment and the Way Forward

August 17th, 2020

The following essay by Dr. Mara Tignino and Ms. Öykü Irmakkesen is a summary of their recently published monograph (under the same title), which appears in Vol. 5(2) 2020, pp. 3-104 of Brill Research Perspectives in International Water Law.  Dr. Tignino is Lead Legal Specialist at the Platform for International Water Law at the Geneva Water Hub and Reader at the Faculty of Law and the Institute for Environmental Sciences at the University of Geneva. She can be reached at mara.tignino@unige.ch. Ms. Irmakkesen is Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights and former Researcher at the Geneva Water Hub. She can be reached at oeykue.irmakkesen@unige.ch.

Water tower in Vukovar, Croatia, damaged during the Battle of Vukovar in 1991

Water infrastructures have been objects of attacks and weaponized in several armed conflicts throughout history. While such acts are invariably condemned by the international community, a thorough study of the legal framework on the protection of water infrastructure had until now been missing. However, as demonstrated in the monograph, protection of water infrastructure is essential to the protection of the environment and civilians during armed conflicts. Damaging or destroying these infrastructures can lead to the contamination of water resources and a disruption in the vital services they provide including water for personal and domestic uses, water for irrigation, and water for energy supplies.

The monograph starts with an introduction, which outlines the scale of the problems caused by attacks against and the weaponization of water infrastructure. This is followed by sections on the background and methodology of the Geneva List of Principles on the Protection of Water Infrastructure. Lastly, preliminary remarks on the List’s scope and content are provided.

This monograph is based on a project carried out by the Geneva Water Hub and its Platform for International Water Law. The project was triggered by the final report of the Global High-Level Panel on Water and Peace, A Matter of Survival. The report’s second chapter, entitled ‘Into the Abyss: Water in Armed Conflicts’, contained several recommendations, mainly addressed to the UN Security Council, including strengthening the respect for and implementation of international humanitarian law for better protection of water resources.

The main section of the monograph is the Geneva List of Principles on the Protection of Water Infrastructure and its commentary. The Geneva List includes principles applicable in peacetime, during armed conflicts and in post-conflict situations. These principles bring together rules regulating the protection of water infrastructure under international humanitarian law, international human rights law, international environmental law and international water law. Moreover, some principles also reflect recommendations that go beyond the existing law, which are largely built upon the practice of parties to past and current conflicts and well-recognized soft law documents, such as the Berlin and Madrid Rules of the International Law Association.

Certain types of water infrastructure are specially protected under international humanitarian law. For example, drinking water installations and irrigation works are protected under a special regime as objects indispensable to the survival of the civilian population (Article 54 of the First Additional Protocol and Article 14 of the Second Additional Protocol to the four Geneva Conventions of 12 August 1949 relating to the protection of victims of international and non-international armed conflicts, respectively). Likewise, dams are also accorded special protection as they are considered to contain dangerous forces (Article 56 of the First Additional Protocol and Article 15 of the Second Additional Protocol to the Geneva Conventions). Additionally, all water infrastructures are protected by the general rules on the conduct of hostilities as long as they remain civilian objects. For example, the principle of proportionality prohibits launching an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b) of the First Additional Protocol to the Geneva Conventions). This principle is particularly important in urban warfare contexts where the interconnectedness of infrastructure results in knock-on effects of the damaging or destruction of only one component. Such reverberating effects, which may not take place in the immediate aftermath or vicinity of the attacks but are foreseeable, must be taken into account by the parties to conflicts in their proportionality assessments.

Finally, the monograph concludes with a short section that delineates the perspectives of the authors on the possible challenges ahead, for example, due to climate change and proliferation of cyber warfare. This part also sets forth next steps to be taken based on the Geneva List of Principles by the Geneva Water Hub and explores the idea of creating a mechanism to monitor damages to water infrastructure during armed conflicts.

The writing of the Geneva List of Principles coincided with several related projects by different actors. Notably, the International Law Commission has provisionally adopted the draft principles on the protection of the environment in relation to armed conflict on first reading in 2019. The International Committee of the Red Cross has been updating its 1994 Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict and is expected the publish the new guidelines by the end of 2020. During the drafting and publication process of the Geneva List of Principles, the Geneva Water Hub also cooperated with UNICEF, which launched its Water Under Fire campaign in March 2019. These initiatives highlight the increasing interest in revisiting rules and issues relating to the protection of water and the environment, also with the aim of enhancing the protection of civilians from the effects of armed conflicts.

You can access the monograph here.

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Democratic water governance to achieve a human right to water

July 28th, 2020

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

Ten years ago, the global community formally recognized a universal human right to water in a United Nations resolution. While a major milestone in the effort to secure adequate freshwater for all people globally, much remains to be done.

The unravelling COVID-19 pandemic underscores the inequities and gaps in access to clean water that continue to plague communities worldwide. More importantly, it highlights the reality that while articulation and even codification of the right to water is crucial for ensuring human health and life, fulfillment of that right requires a foundation of strong democratic governance.

Pronouncing the right

The call for formal recognition of a human right to water can be traced back, at least, to 1977 and the UN Water Conference held in Mar del Plata, Argentina. The Action Plan from that event declared that “All peoples, whatever their stage of development and social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs.” Building on that foundation, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and the 1989 Convention on the Rights of the Child were the first global treaties to formally and explicitly recognize a right to water in their text.

Over the next few decades, various UN and other conferences and pronouncements expanded on the right and its scope and application. Most notable was the 2002 General Comment No. 15 issued by the UN Economic and Social Council, which provided guidelines for interpreting the right to water, framing it within the right to an adequate standard of living and the right to the highest attainable standard of health. In its opening article, the Comment provides that “The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.”

Finally, the 2010 UN Resolution, as well as the 2015 UN Resolution that explicitly recognized the human right to sanitation as a distinct right, capped the series of formal recognitions and gave official notice that, moving forward, the global community acknowledges and intends to respect the existence of these critical human rights.

Ongoing shortfall

Despite these noble and meaningful achievements, progress in attaining the goals that these rights envision has been challenging. In 2019, the World Health Organization reported that 785 million people around the world continue to lack even the most basic drinking-water services, and at least 2 billion people still use a drinking water source contaminated with feces.

Of particular relevance to the current COVID-19 pandemic, the chief executive of the NGO WaterAid recently noted that three quarters of households in developing countries worldwide did not have access to infrastructure or facilities where handwashing was available, and that one third of healthcare facilities in these countries lacked access to clean water on site.

While poorer nations tend to bear the brunt of inadequate access to freshwater, these shortfalls also plague the developed world. A 2020 report by the US Water Alliance asserted that in the United States, more than two million people lack running water and basic indoor plumbing; a 2018 report by Food and Water Watch found that 15 million Americans experienced a water shutoff in 2016. Similarly, the World Health Organization Regional Office for Europe reported that 16 million people across the region have no access to clean drinking-water, and more than 31 million lack adequate sanitation services.

Clearly, we are not living up to the promises and expectations of a universal human right to water. Even when recognizing that such a right can be functionally implemented only at the domestic level, and on a country-by-country basis, the gaps in fulfilling the human right to water across the globe remain vast.

Democracy is key

The main challenge to realizing any human right is in its implementation at the domestic and local levels. The human right to water (as is the right to sanitation) is particularly susceptible to the vagaries of national and local politics, as well as the injustices and disparities that result from classism, racism, sexism, religious prejudice, and other forms of discrimination and oppression. Moreover, while the 2002 General Comment No. 15 asserted that the human right to water “is a prerequisite for the realization of other human rights,” that right itself is highly dependent on the fulfillment of other rights and a functioning government with strong democratic ideals.

Ensuring access to water to all people necessarily implicates investments in infrastructure, tariffs or other resources to cover costs, allocation determinations, and ultimately prioritization decisions. As a result, the right to water functions at the domestic level as a social justice issue, and more precisely, a water justice issue. It is built on notions of fairness (acting without bias), equity (acting to meet needs), accessibility (ensuring the ability to acquire), and participation (involvement in decision-making). Without a strong water justice foundation, the right to water remains aspirational.

Furthermore, the right to water is highly dependent on a regime that ensures and enforces other fundamental human rights, most notably, expression, assembly, non-discrimination, and dignity. As a matter of history, this occurs where governance regimes respect the democratic process. Together, water justice and basic human rights serve as prerequisites and actually constitute the necessary tools for the realization of a viable and enforceable human right to water.

Beyond a paper right

While the phrase “water is life” may have become a cliché, it remains a truism. Yet, the fulfilment of its logical conclusion – that all people must have access to freshwater – remains far from reality. This has become brutally evident in the context of the COVID-19 pandemic where millions of people worldwide cannot even wash their hands to maintain their health, let alone drink potable water to maintain their lives.

The right to water, however, is intertwined with and dependent on democratic governance. Without a foundation that recognizes water as a justice issue and ensures other basic human rights, the right to water will simply remain a paper right.

This essay was written by Gabriel Eckstein for the Global Water Forum to celebrate the adoption of “the human right to water and sanitation” by the General Assembly of the United Nations on 28 July 2010. In addition to appearing here on the International Water Law Project, you can also find the essay on the Water Justice Hub website.

Main image by Sasin Tipchai from Pixabay

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African Basin Management Organizations: Contribution to Pollution Prevention of Transboundary Water Resources

July 20th, 2020

The following essay by Dr. Komlan Sangbana is a summary of his recently published monograph (under the same title), which appears in Vol. 5 (1) 2020, pp. 1-76, of Brill Research Perspectives in International Water Law.  Dr. Sangbana is a Legal Officer at the Secretariat of the Convention on Protection and Use of Transboundary Watercourses and International Lakes (UNECE) and a Research Fellow at the Platform for International Water Law housed by the Faculty of Law at the University of Geneva. He can be reached at komlan.sangbana@un.org

Shortly after their emergence as independent states, African countries established basin organizations and commissions. Some basin organizations, such as the Inter-State Committee established by states sharing the Senegal River basin, namely Guinea, Mali, Mauritania, and Senegal, were already established in the 1960’s. The Lake Chad Basin Commission and the River Niger Commission were both established in 1964. While economic integration justified this initial impetus of African countries towards the establishment of basin organizations, several challenges, such as transboundary freshwater pollution and low water quality due to the multiplication of development projects, have become a growing concern in the recent decade. The chief concerns of African countries in this respect were to avoid the dramatic consequences of water pollution for the quality of life of populations, the aquatic ecosystems, and biological diversity. Poor or unilateral management of transboundary water basins may cause these negative consequences for local communities living near international watercourses.

This monograph examines the important role that basin organizations play in the protection of water resources in Africa and offers suggestions to enhance their efficiency by looking at their normative and institutional frameworks. It is divided in four sections.

The first part is an introduction that provides an overview of the existing basin organizations in Africa, their different goals and multiple objectives. It offers an analytical framework for understanding the proliferation of basin organizations in Africa, as well as their legal typology.

The second part of the monograph discusses the contribution of basin organizations in the elaboration of pollution control standards. Focusing on the standard-setting role of these bodies, it unveils how basin organizations foster cooperation among member states and assists them in preventing transboundary pollution. In that respect, it reviews the processes and norm-based arrangements that inform the adoption of pollution control standards. Furthermore, it explores the various normative tools used by African basin organizations to regulate the conduct of their member states and their nationals, while taking into account the increasing involvement of non-state actors in the exploitation and management of transboundary water resources.

The third part of the monograph examines the contribution of African basin organizations to the implementation of pollution control standards. In this regard, it critically analyses the procedural and institutional tools that African basin organizations use to ensure the respect for the rule of law. Noting that the support that African basin organizations provide to their member states is as diverse as the organizations themselves, this study chooses to focus on the most analytical relevant aspects of their mandates. Thus, it addresses the scope and features of their control and monitoring activities and their mandates as far as the settlement of dispute is concerned.

The fourth part, which is a general conclusion, provides concrete suggestions derived from African practices of transboundary water management for the prevention of the pollution of transboundary water resources, as well as for enhancing cooperation and strengthening the role of basin management organizations.

From this study, it is clear that over time, the protection of water resources and their ecosystems has become a key focus of basin organizations in Africa. The development, adoption and implementation of pollution control standards by basin organizations have widened the remit and greatly strengthened the role of these institutions. As such, basin organizations have become central actors in the domain of African regional law for the protection of freshwater resources and the environment more generally.

The monograph is dedicated to the memory of Professor Kader Asmal (1934–2011) for his steadfast intellectual efforts to promote environmental protection in water governance.

The full article can be accessed here.

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Swimming Against the Current: Revisiting the Principles of International Water Law in the Resolution of Fresh Water Disputes

April 22nd, 2020

The following essay by Tamar Meshel, of the University of Alberta Faculty of Law, summarizes her recently published article in the Harvard International Law Journal under the same title. She can be reached at meshel [@] ualberta.ca.

Dr. Tamar Meshel

There are currently two dominant views in the international water law (IWL) literature on the relationship between the customary international law principles of ‘equitable and reasonable utilization’ (ERU) and ‘no significant harm’ (NSH). The first view considers ERU to be the guiding principle of IWL and subordinates NSH to it, while the second view posits that the two principles are equal, and neither prevails over the other. Both views may be fit for purpose in the daily management of interstate fresh water resources and the prevention of disputes. In the context of resolving ever-increasing transboundary fresh water disputes (TFDs), however, the practical application of the two principles remains unclear, casting doubt on their ability to effectively guide states. This is evident, for instance, in the ongoing dispute between Ethiopia and Egypt concerning the Grand Ethiopian Renaissance Dam. While Ethiopia claims an equitable and reasonable right to build the dam, Egypt maintains its historic right to be free from significant harm that it claims the dam will cause it. The unclear relationship between the two principles thus enables states to cling to contradictory interpretations that suit their unilateral interests, thereby aggravating the dispute rather than resolving it.

In my article, I explore the potential for NSH to operate as the guiding principle of IWL and promote the resolution of TFDs. The strengths and weaknesses of ERU, as well as the historical evolution of both ERU and NSH, have been discussed in detail elsewhere. The article therefore largely takes the status quo described above as its starting point, and focuses on how the role that the two principles have played in the resolution of TFDs could be strengthened. Its contribution is not in arguing that ERU is an irrelevant principle to TFD resolution. Rather, while ERU remains the end goal of such resolution, the article posits that, both conceptually and practically, the means to this end is the NSH principle.  

The article discusses two qualities of NSH that make it an appropriate guiding principle in the resolution of TFDs: First, its due diligence standard of conduct and second, its ability to balance states’ competing interests.

The due diligence standard of the NSH principle guides states on how to prevent or minimize the risk of significant harm. This standard can facilitate the resolution of TFDs since it does not simply impose an “amorphous negative duty” to avoid harm, but rather a “positive duty to take concrete steps” to prevent harm. It therefore makes such harm not only more easily attributable to a particular state, but also less likely to occur if diligence is exercised. The due diligence nature of NSH also clarifies that this principle does not constitute a rigid blanket prohibition of all harm, but rather a more flexible rule that enables states to prevent significant harm by requiring them to observe a basic and uniform standard of conduct.

River Nile route.
Wikipedia https://commons.wikimedia.org/wiki/File:River_Nile_route.jpg

In addition, the NSH principle can be used to objectively evaluate states’ competing water uses by way of a balance-of-harms analysis. This analysis weighs the overall detrimental effects of a particular water use against its overall benefits—or, in other words, the harm caused by prohibiting it. It achieves a balanced outcome by focusing on the relevant states’ mutual goal of avoiding the greater harm to each other, the environment, and the shared fresh water resource. The question guiding this analysis, moreover, is not whether a particular use is “equitable and reasonable” and should therefore be allowed regardless of the resulting harm, but rather what is the greater harm to be avoided—that caused by the particular use or that resulting from the loss of its benefits. This ensures that even where “equities presumptively [support] protection” of a particular use, “the balance of benefit and harm” is maintained.

The due diligence nature of NSH and its balance-of-harms analysis also operate to reduce the incredibly high transaction costs involved in the resolution of TFDs. Due diligence obligations contribute to the reduction of these transaction costs since they equip states with the common goal of preventing the greater harm, as well as with the tools to achieve it. The balance-of-harms exercise provides states with reciprocal protection as well as an objective yardstick with which they can evaluate each other’s behavior. NSH can therefore serve to reduce transaction costs arising from contradictory positions and the absence of a unifying, objectively assessable, guiding principle.

The article also evaluates the use of NSH and ERU in the resolution of TFDs in practice by analyzing six such disputes submitted to arbitration and judicial settlement. This analysis reveals that where only the ERU principle was applied by the court or arbitral tribunal, namely in the Danube River decision, the dispute was not successfully resolved. The absence of both principles in the Meuse River decision also did not lead to a successful resolution. In contrast, in the four disputes that were successfully resolved—Lake Lanoux, Indus River, San Juan River, and Uruguay River—the NSH principle was applied either alone (in the first three cases) or together with the ERU principle (in the latter case). This analysis is not intended to prove that the use of the NSH principle necessarily leads to the successful resolution of all TFDs, as such resolution ultimately depends on states’ political will and good faith. Nevertheless, it lends some empirical support to the conceptual proposition that NSH is well suited to guide states toward successful resolution.

In their current state, the ERU and NSH principles fail to provide effective guidance to states faced with TFDs. At the same time, these disputes are likely to continue arising around the world, making effective international rules even more imperative. This article suggests an alternative to the prevailing views of IWL, which treats the NSH principle as its guiding principle for the purpose of TFD resolution. This approach builds on NSH’s due diligence standard, and proposes a balance-of-harms analysis to assist states such as Egypt and Ethiopia in weighing their competing interests and minimizing or preventing the most significant harm. Using NSH in this way promises to achieve both harm prevention and equitable and reasonable use––the dual goals of IWL.

The full article can be accessed here.

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Data Innovations for Transboundary Freshwater Resources Management: Are Obligations Related to Information Exchange Still Needed?

March 9th, 2020

The following essay by Dr. Christina Leb is a summary of her recently published monograph (under the same title), which appears in Vol. 4.4, 2019, pp. 3-78, of Brill Research Perspectives in International Water Law. Dr. Leb is a Senior Counsel at the Environment and International Law Unit of the World Bank and a Research Fellow at the Platform for International Water Law housed by the Faculty of Law at the University of Geneva. She can be reached at cleb[at]worldbank.org

Cross-border data and information exchange is one of the most challenging issues for transboundary water management. Water data is deemed sensitive and subject to restrictions with respect to dissemination and use in many countries. Another key challenge is the steady decline of ground monitoring systems due to ageing equipment, and the limited availability of resources for maintaining and modernizing these systems according to the latest standard of technology. At the same time, data and information availability is key to sustainable water management.

The 1997 United Nations Watercourses Convention (Art. 9) and the 2008 Draft Articles on the Law of Transboundary Aquifers (Art. 8) identify regular exchange of data and information as one of the general principles of international water law. The availability of information with respect to hydrological, meteorological, hydrogeological and ecological nature of transboundary water systems, among other, is required to implement the principle of equitable and reasonable utilization. States need to know about the natural characteristics of as well as the demands and stresses on the cross-border water system they share with their neighbours.

The main difficulty for riparian states is to obtain all the information and data required to prepare a detailed assessment according to the equitable and reasonable use principle. The information needs are wide ranging and often, not all information is available at the national level.

New opportunities for access to water related data have opened up with the availability of technological innovations related to real-time data, space technology, and Earth observation. These technologies have led to a drastic increase in quality and availability of hydrological, meteorological and geo-spatial data. In basins where seasonal flows are largely dependent on snow pack, satellite imagery of snow cover can help identify how much and where water is stored in the upper catchments. Information on lake and river surface elevation can facilitate downstream flow predictions. Field-based data sources can be combined with satellite data to further enhance forecasting and planning systems. With the help of telemetry, data can be collected even at remote, inaccessible places and automatically transmitted to central control points, where this data can be converted for various applications, such as flood forecasting systems, warning systems on toxic water pollution, and others. Hydro-meteorological models based on real-time and historic datasets can be used to shorten lead-time and enhance the accuracy of early warning systems.

The key legal drivers making Earth observation data more available come from outside international water law. Space law and the framework established by the United Nations Framework Convention on Climate Change (UNFCCC) have paved the way for comprehensive Earth observation initiatives, and continue to accelerate public accessibility of data and information for the benefit of all. The outer space treaties have opened the skies to freedom of exploration and freedom of data generation. And in line with their UNFCCC commitment to systematic observation, states leading in space technology have made most of their climate relevant datasets available to other nations and, to a significant extent, the public.

Publicly available Earth observation information can be used to assess equitable and reasonable use. These datasets reduce the amount of information that need to be shared directly between riparian states. With the help of Earth observation technologies, water managers can base their decision-making on information that belongs to parts of the basin that lie outside of their own national boundaries. The information can also be used to enhance the lead-time for emergency notification. Additionally, the ever-increasing availability and accessibility of data generated through Earth observation technologies may change due diligence standards for riparian states (with respect to information gathering and sharing) in implementing the equitable and reasonable use principle, as well as other international water law obligations.

The monograph, published in the Brill Research Perspectives in International Water Law series, presents an exploratory assessment of the potential impacts of new data technologies on data and information exchange obligations. By highlighting the practical challenges of the use of data generated through Earth observation technologies for water management purposes, the monograph discusses how these technological innovations may, nevertheless, modify the existing contours of the rights and obligations related to data and information exchange in international water law.

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New Publication Questions the Status of the UN Watercourses Convention

January 9th, 2020

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

When the Convention on the Law of the Non-Navigational Uses of International Watercourses was adopted by the United Nations General Assembly on 21 May 1997, it was heralded as a major milestone in the evolution of international water law.  In particular, the fact that the Convention was adopted by a significant margin – 103 in favor, three against, and 27 abstentions (UNGA Press Release GA/9248) – indicated broad and robust support for what was then the only global instrument for the management of international watercourses. 

The permanent representative of Mexico to the UN at the time, Ambassador Manuel Tello, asserted that the Watercourses Convention “undoubtedly marks an important step in the progressive development and codification of international law” (U.N. GAOR, 1997, p. 2).  Even China, one of the three members who ultimately opposed the Convention, stated that they believed “the draft articles [on the law of the non-navigational uses of international watercourses] have laid a fairly good foundation for the formulation of an international convention” (U.N. GAOR, 1997, p. 6).

Despite the hopes and promises of the Convention, nearly fifty years after its initial instigation at the United Nations, more than 20 years following its adoption by the UNGA, and over 5 years after it came into force (17 August 2014), enthusiasm for that instrument appears to have waned.  Although the Convention is in force for the states that have ratified it, it only attained that status following seventeen years of relatively slow progress and now has only 36 ratifying parties (Status of the Watercourses Convention).  Moreover, despite continued encouragement by various non-governmental and intergovernmental organizations, few additional states seems poised to accede to the agreement.

A new article – The Status of the UN Watercourses Convention: Does it Still Hold Water?, published in the International Journal of Water Resources Development – examines the extent of support that nations have shown the Watercourses Convention, and assess its continued sustainability.  The article does not reject the normative value of the Convention or its relevance for various nations in their efforts to engage with their neighbors over transboundary freshwater resources.  Rather, the article seeks to ascertain why relatively so few nations have ratified the instrument.

With this in mind, the article examines the support provided the Convention’s drafted norms and procedures during its development, at its historic appearance on the global stage during the 1997 vote at the UNGA, and subsequently as nations ratified the instrument and eventually brought it into force.  It also seeks to ascertain patterns in the 1997 vote and subsequent ratifications, and thereby uncover some of the possible reasons for the diminishing appeal of the instrument.  Charts and tables displaying characteristics of the votes, ratifications, riparian status, geography, and other factors are provided to support the analytical objective.

Finally, the article considers other externalities that may have negatively influenced the level of interest in the Convention that has been offered by nations.  Among others, these include divergent interpretations and misunderstanding among the international community of the norms codified in the instrument, and competition from the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes.

The article – The Status of the UN Watercourses Convention: Does it Still Hold Water? – is published in the International Journal of Water Resources Development and is available here.

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Botswana, Namibia and South Africa Develop Joint Governance Mechanism for the Stampriet Aquifer System in the Orange-Senqu River Commission

December 9th, 2019

The following essay was prepared by Stefano Burchi, Chairman of the International Association for Water Law (AIDA), and former consultant to the GGRETA project. He can be reached at stefano.burchi [@] gmail.com.

Background

The Stampriet Transboundary Aquifer System (STAS) stretches from Central Namibia into Western Botswana and South Africa’s Northern Cape Province, and lies entirely within the Orange-Senqu River Basin (see map). The STAS is a very large transboundary aquifer system, receiving relatively insignificant recharge, in a semi-arid to arid region without permanent surface water. It covers a total area of around 87 000 km², of which 73% lies in Namibia, 19% in Botswana, and 8% in South Africa. The area is sparsely populated with slightly over 45,000 persons concentrated in communities ranging from small rural settlements to villages and towns. Groundwater is the major source of water in the area and provides potable water to the population and livestock and for irrigation. There currently are no industrial or mining activities taking place in the STAS area. Over 20 million m³/year of groundwater is abstracted from the Aquifer, a considerable majority of which occurs in Namibia (over 95%). The largest consumer of water is agriculture in the form of irrigation, followed by stock watering and domestic use. There is a sizeable amount of water that is lost through evaporation and to invasive plant species and that is difficult to estimate.

With financial assistance from the Swiss Agency for Development and Cooperation (SDC), and with the technical assistance of UNESCO-IHP, the STAS countries have been actively cooperating in assessing the aquifer and its characteristics since 2013, through the Governance of Groundwater Resources in Transboundary Aquifers (GGRETA) project. That project aims to facilitate cooperation among countries sharing select transboundary aquifers (TBAs). In addition to the STAS, the GGRETA project is active in Central America on the Ocotepeque-Citalá Aquifer shared by El Salvador and Honduras (see here), and in Central Asia on the Pre-Tashkent Aquifer System shared by Kazakhstan and Uzberkistan.

Location of the Stampriet Transboundary Aquifer System (in orange) and the Orange-Senqu River Basin (in green) in southern Africa

The first phase of the project (2013-2015) focused on an in-depth assessment of the STAS using existing data and information, which allowed for the establishment of a shared science-based understanding of the aquifer. The activities of the second phase (2016-2018) focused primarily on consolidating the technical results achieved and the tools developed in the first phase. It also addressed strengthening capacity of national water institutions and academia in groundwater governance at the national and transboundary levels in order to support the process of establishing a Multi-Country Cooperation Mechanism (MCCM) for the governance and management of the STAS.

The first phase of the project (2013-2015) focused on an in-depth assessment of the STAS using existing data and information, which allowed for the establishment of a shared science-based understanding of the aquifer. The activities of the second phase (2016-2018) focused primarily on consolidating the technical results achieved and the tools developed in the first phase. It also addressed strengthening capacity of national water institutions and academia in groundwater governance at the national and transboundary levels in order to support the process of establishing a Multi-Country Cooperation Mechanism (MCCM) for the governance and management of the STAS.

The cooperation facilitated by the GGRETA project has yielded an in-depth assessment of aquifer characteristics, including current and projected uses of groundwater and likely future stress conditions under relevant factors.

The assessment also revealed a number of challenges:

  • lack of monitoring data seriously hampers a systematic diagnostic analysis of groundwater quantity-related stress; 
  • pollution by humans and animals, and that caused by poor well construction and lack of protection, is currently localized in the shallower parts of the STAS;
  • although there is no mining or industrial activity in the STAS area at present, unregulated mining activities might lead in the future to pollution of the aquifer system due to its fragility and vulnerability;
  • vertical leakage between superposed aquifers is accelerating due to uncemented borehole casings and metallic corrosion.

In view of the importance of the aquifer’s resources to the future of the local population, the three countries sharing the aquifer concurred in 2016 on the desirability of establishing a Multi-Country Cooperation Mechanism (MCCM) for the joint governance and management of the STAS.

The STAS MCCM

On 17-18 May 2017, delegations from Botswana, Namibia and South Africa attended the 3rd meeting of the Orange-Senqu River Commission (ORASECOM) Ground Water Hydrology Committee (GWHC) and Technical Task Team (TTT), where they tabled a proposal to establish the STAS MCCM within the ORASECOM structure. The proposal was put before the 34th Ordinary meeting of the ORASECOM Council, held 17-18 August 2017 in Windhoek, Namibia. The Council resolved that the STAS MCCM “be nested/housed” within the ORASECOM GWHC. While it is unclear whether the Council formally resolved to “establish” or “create” the mechanism, its intent to do so is clearly implied by its decision to “nest/house” such mechanism in the ORASECOM structure. Moreover, the Council resolution was subsequently endorsed by the Ordinary meeting of the ORASECOM Forum of the Parties (Ministers responsible for water), held on 16 November 2017 in Kasane, Botswana. Relevant milestones and a schedule of implementation were also approved, with implementation being reportedly in progress.

The STAS MCCM aims at integrating the GGRETA project support structure in the GWHC. The GGRETA project hydrogeology/model, legal and institutional, and gender National Focal Points (NFP) in the three countries will assist and report to the GWHC Officials on data collection, which will serve as a basis for the development of scenarios and project activities. In the short term, GWHC Officials will be in charge of updating the STAS joint borehole database during GWHC meetings, and reporting to the Technical Task Team (TTT) on the work program according to the planning and annual budget. The TTT will then report to the Council.  Ad hoc Working Groups (AWG) composed of experts nominated by the Council or GWHC will be formed as and when necessary for the evaluation of studies, and to support the design of projects and activities. Other concerned stakeholders (e.g. the SADC Groundwater Management Institute) would be invited to GWHC meetings on a regular basis.

The long term vision is for the STAS MCCM to move from data collection and exchange to joint strategizing and advising STAS countries on the management of the aquifer and its resources.

The decision to “nest/house” a STAS joint governance mechanism in an existing river basin organization can be regarded as a breakthrough in many respects. First, it is the first arrangement for the governance of a transboundary aquifer since the adoption of the Sustainable Development Goals (SDGs) in 2016. Prior to the STAS cooperative mechanism, only a handful of formal agreements worldwide had been developed for TBAs (see summary at the end of the essay). Second, it is the first governance mechanism to be nested formally in a river basin organization, which attests to the Integrated Water Resources Management (IWRM) approach with potential for, in particular, the conjunctive management of groundwater and surface water. Third, the fact that activities related to the STAS are now built in ORASECOM’s 10-year IWRM Plan (2015-2024) can be regarded as an indicator of the sustainability of the institutiional arrangement made. As a result, ORASECOM will be responsible for the implementation and reporting on activities related to the STAS. Lastly, the process that led to the decision to institutionalize cooperation on the STAS was remarkably expeditious. The process was expedited by a combination of factors, chief among them a clear perception by the countries concerned of the advantages of cooperation in the face of the challenges looming ahead. The institutional architecture of ORASECOM, structured into a Forum of the Parties, a Council, a Secretariat, four standing Task Teams, and committees operating under the latter (among these, the GWHC operating under the standing Technical Task Team), also helped as the proposal that was initiated by the GWHC could quickly and seamlessly work its way up the institutional ladder to the highest decision-making body of the Commission, for a decision in less than a year.

Information generated by the GGRETA project and STAS databases are currently available at http://wis.orasecom.org/stas/

NOTE: Legally binding agreements are on record for the following TBAs: North-Western Sahara Aquifer System (Algeria, Libya, Tunisia); Nubian Sandstone Aquifer System (Chad, Egypt, Libya, Sudan); the Genevese Aquifer (France, Switzerland); and Al Sag/Al Disi Aquifer (Jordan, Saudi Arabia). An agreement on the Guaraní Aquifer (Argentina, Brazil, Paraguay, Uruguay) is pending delivery of the final ratification to the agreement’s secretariat, while an agreement on the Iullemeden Aquifer System (Algeria, Benin, Burkina Faso, Mali, Mauritania, Niger, Nigeria) is pending signature by some of the Parties.

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Use of Experts in International Freshwater Disputes: A Critical Assessment

November 11th, 2019

The following essay by Dr. Makane Moïse Mbengue and Rukmini Das is a summary of their recently published monograph (under the same title), which appears in Vol. 4.3, 2019, pp. 1-94, of Brill Research Perspectives in International Water Law. Dr. Mbengue is a Professor of International Law at the Faculty of Law of the University of Geneva. He can be reached at makane.mbengue [at] unige.ch. Ms. Das is a PhD candidate at the Faculty of Law of the University of Geneva. She can be reached at rukmini.das.

Given the vital importance of water to life on earth, and that only a small fraction of that water is fresh water, disputes over this scarce and valuable resource are inevitable. The nature of disputes ranges from access to water and related issues such as dams and river diversion, to water pollution and environmental harm. Rivers, often forming international boundaries between states, become a subject matter in boundary disputes.

States thus have varied reasons for initiating proceedings before international courts or tribunals, for breach of treaties or international legal norms, all arising out of, or related to, or affecting fresh water. These legal issues often involve complex questions of fact, such as the contours of a river, or the extent of its pollution, which a legal adjudicator alone may not be well-equipped to handle and resolve. Considering the importance of water for survival, effective resolution of such disputes is of paramount importance. With water becoming increasingly a scarce resource, and with the steady growth in population, disputes will continue to erupt and multiply, and the claims will get more complex and novel.

The technical nature of international water disputes has resulted in the rise in the involvement of experts in the resolution of these disputes. Such disputes may arise out of disagreements over installations situated on or near a water body, or their design, impacts on water and its quality, or the natural characteristics of the water body. These may be considered the distinguishing features of an international water dispute. As a tool to assist the adjudicator in decision-making, the need for experts has arguably increased manifold in the recent past, as has its use.

It has been seen mostly in the context of water disputes that the issue of expert use has led to controversies and procedural innovations that have clarified or modified expert use in future disputes, both water-related and otherwise. An examination of water-related disputes before international courts and tribunals, which is the subject of our monograph, demonstrates how experts have been involved in various roles in dispute resolution. We also give attention to those disputes where experts have ostensibly not been involved, but which could have benefited from expert involvement.

In our monograph, we examine these kinds of disputes with the goal of determining the place and importance of experts in water disputes, their increased need (if any) and how best to use them. A useful starting point to this objective of the monograph is an understanding of the recognition of experts and rules governing them in dispute settlement provisions of treaties and rules related to freshwater. Though later we describe the legal provisions on experts in the respective statutes or rules before embarking on an analysis of the cases, we begin with a preliminary section on dispute settlement provisions in select water-related legal instruments (treaties and rules) and whether and how they address the use of experts. An understanding of this textual aspect of the use of experts complements the case law analysis that follows. With this background, it is interesting to see in the subsequent sections how a few major international judicial fora compare to these treaty provisions, and how the use of experts has played out in practice.

For the rest of our monograph, we offer a critical assessment of the involvement of experts in resolving international water disputes. The case analysis, focusing on the role of experts, how they were used, or highlighting their absence, is divided by forum into three categories: first, water disputes before the International Court of Justice (ICJ or ‘the Court’); water disputes resolved through inter-state arbitration under diverse ad hoc and institutional rules; and finally, investor–state disputes involving water resources. Through this examination, we identify the lacunae as well as good practices in expert use in disputes of this nature. This case analysis is followed by a concluding comparative examination of the necessity and importance of experts in resolving water disputes, and how best to use them in such cases. We thus conclude by proposing the best practices with respect to expert involvement and use, for a more efficient and fair resolution of international water disputes.

The full article can be accessed here.

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