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

August 31st, 2015

By Gabriel Eckstein

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

Saq-Ram Aquifer Map

Saq-Ram Aquifer

 

The Aquifer

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

Use of the Aquifer’s Water

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

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

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

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

The Agreement

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

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

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

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

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

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

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

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

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

Conclusion

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

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

The Kishenganga Awards and their Contributions to International Water Law

August 5th, 2015

The following post is by Dr. Mara Tignino, Senior Lecturer and Coordinator of the Platform for International Water Law, Faculty of Law, University of Geneva. She can be reached at Mara.Tignino [at] unige.ch.

 

In May 2010, Pakistan initiated an arbitration proceeding against India concerning the construction of a hydroelectric infrastructure project (“KHEP”) undertaken by India on the Kishenganga River—part of the Indus River basin. The KHEP is situated in India-administered Jammu and Kashmir in north-west India, about 12 kilometres upstream of the Line of Control with Pakistan-administered Jammu and Kashmir, and is aimed at producing hydropower via a diversion of the River’s flow. Once completed, the diverted waters would flow through a tunnel around 23.5 kilometres long toward a power facility situated 666 meters below the Kishenganga dam. The water will then be redirected into Wular Lake and the River Jhelum, which flows into the territory of Pakistan. The falling water would drive turbines producing about 330 megawatts of electricity. According to Pakistan, the KHEP will have an impact on water flow downstream in Pakistan and affect its own production of hydropower.

Kishenganga Hydroelectric Project (Source: Partial Award, p.51)

Kishenganga Hydroelectric Project (Source: Partial Award, p.51)

The uses of the Indus River and its tributaries are regulated by the Indus Waters Treaty, adopted by India, Pakistan and the International Bank for Reconstruction and Development (IBRD) in 1960. Article IX of the treaty provides for the establishment of mechanisms for the settlement of differences and disputes between the two States. As a result of Pakistan’s request, an arbitral tribunal composed of seven arbiters was established under article IX, which subsequently issued four decisions: an Order on Interim Measures in September 2011, based on an application made by Pakistan in June 2011, a Partial Award in February 2013, a Decision on India’s Request for Clarification or Interpretation in May 2013, and a Final Award, issued in December 2013. All four decisions were adopted unanimously.

Signed after ten years of negotiations, the Indus Waters Treaty represented an ambitious landmark in the development of international water law. The treaty is emblematic of the potential for international law to facilitate cooperation in the governance of international watercourses. As emphasized by the tribunal itself, the treaty has been continuously applied for over 50 years, despite recurring hostilities in the Kashmir region, including three episodes of direct armed conflict between India and Pakistan. In fact, while Pakistan had made use of the dispute settlement procedures of the treaty once before—in 2006, it requested the intervention of a Neutral Expert under article IX in the case of the Baglihar hydropower project—this was the first time that an arbitral tribunal had been established to settle a dispute concerning the application and the interpretation of the treaty.

Much as the treaty itself contributed to the development of substantive law on international watercourses, both the process and outcome of the arbitration offered noteworthy innovations in the settlement of disputes on transboundary water resources:

  1. In procedural terms, the inclusion of an engineer among the members of the tribunal offered an interesting approach to balancing the needs for various forms of expertise in the determination of the issues (the Neutral Expert charged with resolution of the 2007 Baglihar dispute was also an engineer). The presence of technical experts as equal participants in dispute settlement mechanisms facilitates the understanding of complex factual issues related to the construction and exploitation of hydropower infrastructures.
  2. From the perspective of substantial international environmental law, the recognition in the award of an obligation to ensure a minimum environmental flow in an international watercourse offers a possible indicator of future developments. The tribunal held that India could divert waters from the Kishenganga River, but that it had to ensure a continuing minimum flow rate of 9 cubic meters of water per second in the River itself (Final Award, p.326). Parties must provide the Permanent Indus Commission with daily data on River flows and the information on the inputs and withdrawals of water from the reservoir. According to the arbiters, the Commission is the most appropriate mechanism to ensure the exchange of data and monitoring of the uses of the tributaries of the Indus River (Final Award, par.121).
  3. Strikingly, the judges rejected the application of the precautionary principle to the case. Pakistan had argued that the flows of the Indus tributaries at the Line of Control are difficult to measure, and the Parties gave different estimations of future minimum flow levels. The tribunal recognized future flows levels would be uncertain, depending both on future uses and on factors outside the control of either India or Pakistan, such as climate change (Final Award, par.117). Rather than basing their judgment on the precautionary principle, they chose to account for this uncertainty by requiring India to finalise the KHEP in a manner that would allow for responsiveness to future variations in flow levels.
  4. Finally, the tribunal offered a lynchpin for the sustainability of this approach by creating a window for reconsideration: if, within seven years after the diversion of the Kishenganga River is finalized, one of the Parties considers it necessary to review the quantity of the minimum environmental flow as decided by the arbitral tribunal, the flow will be submitted to the Permanent Indus Commission or other mechanisms established by the Treaty (Final Award, par.119).
Members of the Court of Arbitration, 20 August 2012 Standing : H.E. Judge Peter Tomka, Judge Bruno Simma, Professor Lucius Caflisch, Professor Jan Paulsson. Seated : Sir Franklin Berman KCMG QC, Judge Stephen M. Schwebel (Chairman), Professor Howard S. Wheater FREng

Members of the Court of Arbitration, 20 August 2012
Standing: H.E. Judge Peter Tomka, Judge Bruno Simma, Professor Lucius Caflisch, Professor Jan Paulsson. Seated: Sir Franklin Berman KCMG QC, Judge Stephen M. Schwebel (Chairman), Professor Howard S. Wheater FREng

The decisions of the arbitral tribunal specify the general obligations related to the construction of hydroelectric projects upstream and downstream of an international watercourse. Thus, the Tribunal affirms that “There is no doubt that States are required under contemporary customary law to take environmental protection into consideration when planning and developing projects that may cause injury to a bordering State” (Partial Award, par.449), and takes note of the principle of sustainable development, the obligation to carry out a transboundary environmental impact assessment and the broader duty to avoid transboundary harm (Partial Award, pars. 448-451). In considering these obligations both in terms of conventional law, according to the Indus Waters Treaty, and in terms of customary law, the arbiters have contributed to the development and clarification of general principles of international water law relating to the environmental protection of transboundary water resources.

Posted in Asia, International Water Law, Tribunal Decision, Water Conflicts | Comments Off on The Kishenganga Awards and their Contributions to International Water Law

The Helmand River and the Afghan-Iranian Treaty of 1973

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)

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

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

IWLP Blog’s Series on 1997 UN Watercourses Convention Republished in Water Policy Journal and in Russian translation

February 26th, 2015

By Gabriel Eckstein

As you may recall, the IWLP Blog recently featured a series of twelve essays on the coming into force of the 1997 UN Convention on the Non-navigational Uses of International Watercourses.  That series was recently republished in Water Policy, a journal published by the International Water Association and the official journal of the World Water Council.

Part I, containing the first 6 essays, was published as: Specially Invited Opinions and Research Report of the International Water Law Project: Global Perspectives on the Entry into Force of the UN Watercourses Convention 2014:  Part One. Water Policy, Vol. 16(6), available at doi: 10.2166/wp.2014.008 (subscription required).

Part II, containing the next 6 essays was published as: Specially Invited Opinions and Research Report of the International Water Law Project: Global Perspectives on the Entry into Force of the UN Watercourses Convention 2014:  Part Two. Water Policy, Vol. 17(1), available at doi: 10.2166/wp.2014.009 (subscription required).

In addition, the entire series was translated into Russian by the Scientific Information Center of the Interstate Coordination Water Commission of Central Asia. That version can be found here.

Posted in International Water Law, New Resources & Information, UN Watercourses Convention | Comments Off on IWLP Blog’s Series on 1997 UN Watercourses Convention Republished in Water Policy Journal and in Russian translation

State of Palestine Accedes to UN Watercourses Convention

January 7th, 2015
Jordan River Basin

Jordan River Basin

By Gabriel Eckstein

 

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

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

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

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

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

La entrada en vigor de la Convención de Naciones Unidas sobre Cursos de Agua Internacionales (The entry into force of the UN Convention on International Watercourses)

October 13th, 2014

The following post is by Dr. Nicolás Boeglin of the la Facultad de Derecho de la Universidad de Costa Rica. It was prepared in Spanish to broaden the discussion about the 1997 UN Watercourses Convention and encourage the conversation in the Spanish-speaking world. The IWLP welcomes such opportunities and looks forward to engaging with friends and colleagues in multiple languages and regions globally.

El siguiente artículo del Dr. Nicolás Boeglin (Costa Rica) analiza el significado de la entrada en vigor de la Convención de Naciones Unidas de 1997 sobre Cursos de Agua Internacionales desde la perspectiva de América Latina. El Dr. Boeglin es profesor de derecho internacional público en la Facultad de Derecho de la Universidad de Costa Rica y es consultor en esta materia. Puede ser contactado al siguiente correo: nboeglin (a) gmail.com.

El pasado mes de agosto, al cumplirse los 90 días posteriores a la ratificación número 35 (Vietnam, en mayo del 2014), entró oficialmente en vigor la “Convención sobre el derecho de los usos de los cursos de agua internacionales para fines distintos de la navegación“, adoptada en 1997 por la Asamblea General de las Naciones Unidas.

Se trata de un instrumento internacional que, de acuerdo a la práctica del derecho internacional cuando se trata de explorar nuevo ámbitos normativos, recurre a la técnica jurídica de la convención marco (“framework convention” en inglés): esta expresión refiere a textos normativos que sistematizan un conjunto de principios generales que puedanervir de base para establecer una futura cooperación interestatal. Un artículo de doctrina sobre este peculiar tipo de instrumentos indica que: “El carácter de convenio marco de una convención se fundamenta en la decisión de las partes de delegar aspectos relevantes para lograr los objetivos de dicha convención a acuerdos posteriores” (traducción libre del autor, p. 441).

La Convención parte de una definición mucho más integral de “curso de agua internacional“, comparada con la clásicamente usada de “río internacional”. Su artículo 2 estipula que: “A los efectos de la presente Convención: a) Por “curso de agua” se entenderá un sistema de aguas de superficie y subterráneas que, en virtud de su relación física, constituyen un conjunto unitario y normalmente fluyen a una desembocadura común; b) Por “curso de agua internacional” se entenderá un curso de agua algunas de cuyas partes se encuentran en Estados distintos“. De acuerdo a este esfuerzo conceptual, podemos citar, a modo de ejemplo, las iniciativas de España para delimitar “la parte española de las demarcaciones hidrográficas correspondientes a las cuencas hidrográficas compartidas con otros países” (artículo 3 del Real Decreto 125/2007). En contraste, podemos indicar que, en la primera controversia sobre los derechos de navegación en el Río San Juan entre Costa Rica y Nicaragua llevada ante la Corte Internacional de Justicia (CIJ), ninguna de las partes logro imponer su pretensión sobre la calificación jurídica del río. En su decisión del 13/07/2009, la CIJ afirmó que “…no cree tampoco, en consecuencia, deber decidir sobre el punto de saber si el San Juan entra en la categoría de los “ríos internacionales” – tal como lo sostiene Costa Rica –  o si constituye un río nacional que comporta un elemento internacional – según la tesis de Nicaragua” (párrafo 34, traducción libre).

La Convención de 1997 contiene varios principios (Artículos 5 a 10) que deben guiar el actuar de los Estados del curso de agua internacional. La lectura del artículo 7 relativa a la obligación de no causar un daño significativo a otros usuarios posiblemente recuerde un sin fin de controversias acaecidas en los últimos años en diversas partes del mundo. Muchas de ellas, como por ejemplo entre Costa Rica y Nicaragua, o entre Argentina y Uruguay, no encuentran una solución satisfactoria en parte debido al uso de nociones jurídicas limitadas que adolecen de un enfoque integral, el cual es indispensable en cualquier intento de regular un recurso como el agua.

Al revisar el estado de firmas y ratificaciones oficial de la Convención, resulta llamativo que la región que concentra mayores recursos hídricos, y que cuenta con una nutrida práctica convencional como América Latina esté ausente de dicha lista. Una firma de Venezuela (1997) y de Paraguay (1998) son los únicos “logros” después de 17 años de campañas a favor de su ratificación promovidas por organizaciones regionales y entidades no gubernamentales (ONG). Una evaluación crítica de estas últimas se impone, ya que raramente se ha observado un impacto tan limitado en América Latina de una campaña en favor de la ratificación de un instrumento a vocación universal.

En 1994, al aprobarse el anteproyecto de la Convención por parte de la Comisión de Derecho Internacional (CDI) los Estados Miembros de Naciones Unidas conformaron un grupo de trabajo para readecuar el texto y garantizarle una adopción final mediante la resolución A/RES/517229 de la Asamblea General. Fue adoptada en 1997 con 103 votos a favor, 3 en contra (Burundi, China y Turquía) y 27 abstenciones. Por parte de América Latina votaron a favor: Brasil, Chile, Costa Rica, Haití, Honduras, México, Uruguay y Venezuela. Se abstuvieron: Argentina, Bolivia, Colombia, Cuba, Ecuador, Honduras, Guatemala, Panamá, Paraguay y Perú. El detalle  del voto indica que Belice, El Salvador, Nicaragua y República Dominicana aparecen entre los “No shows” que sumaron en total 52 Estados (número extremadamente elevado para la práctica en materia de votaciones en la Asamblea General).

La Parte IV de la Convención (reglas en materia de protección del ambiente) puede ser comparada con las reglas enunciadas por la CIJ en el caso de las Plantas de Celulosa (Argentina c. Uruguay, sentencia de abril del 2010). Resuelto de manera sumamente cuestionable, este caso dio lugar a nuevas tensiones, que analizamos recientemente. De la misma manera, el contenido de la Parte IV deberá ser comparado con las reglas que enuncie la CIJ con ocasión de los dos casos que enfrentan a Costa Rica y Nicaragua: el del dragado del río San Juan, con la demanda interpuesta por Costa Rica en el 2010; y el relacionado con la denominada “trocha fronteriza”, objeto de la demanda interpuesta por Nicaragua en el 2011. Tuvimos de igual forma la posibilidad de analizar en su momento el proyecto minero ubicado en la localidad de Las Crucitas en Costa Rica y sus implicaciones ambientales en un curso de agua internacional desde la perspectiva de la protección de un curso de agua internacional.

El derecho internacional tiende a veces a modernizar de manera más ágil el marco jurídico en comparación con el derecho nacional. Tal es el caso de la Convención de 1997. Por ejemplo, dos Estados Parte a la Convención, España y Portugal, han logrado consolidar, luego de la adopción del Convenio de Albufeira de 1998, una cooperación técnica para el aprovechamiento, gestión y protección de las numerosas cuencas hidrográficas compartidas en una impresionante lista de acuerdos técnicos bilaterales.

Es de esperar que esta entrada en vigor reciente inspire a muchos Estados y los incite a ratificar este instrumento internacional, en particular en América Latina.

Posted in Latin America, UN Watercourses Convention | Comments Off on La entrada en vigor de la Convención de Naciones Unidas sobre Cursos de Agua Internacionales (The entry into force of the UN Convention on International Watercourses)

The Sustainable Development Goals Process: Making International Water Law More Sustainable and Ecosystem and Public Participation-Friendly

September 21st, 2014

The following post is by Dr. Otto Spijkers, Assistant Professor of Public International Law at Utrecht University. He can be reached at O.Spijkers [at] uu.nl. The essay is based on Dr. Spijkers’ forthcoming article in the Journal of Water Law.

 

One of the more formidable global challenges today is ensuring the sustainable management of freshwater resources. In many recent speeches and reports, including by Mikhail Gorbachev, one reads that urgent action is necessary to prevent a nightmarish world with polluted lakes and rivers, deadly droughts and floods, water scarcity, and the resulting water wars. This post analyzes how the UN’s Sustainable Development Goals (SDG) process might guide the evolution of the existing international water law framework toward a structure that is more friendly toward sustainable development, ecosystems, and public participation.

The Role of Water in the SDG Process

The SDG drafting process takes place through two work streams, which will come together in autumn 2015 when the UN General Assembly (UNGA) adopts the list of SDGs in the form of a resolution. The first is a work stream led by the UN Secretary-General and supported by many reports and consultations. The second is led by the UNGA Open Working Group on the Sustainable Development Goals (OWG). For an overview of the SDG drafting process, see here and here. After the UNGA adopts the SDGs, the SDG process will focus on implementation, dissemination, monitoring compliance, and creating awareness of the SDGs – a bit like the current status of Millennium Development Goals process.

From the beginning of the SDG drafting process, water has been identified as an important issue. The Future We Want, the outcome document of the 2012 Rio+20 Conference, which set the SDG drafting process in motion, placed water at the heart of sustainable development. Since then, participants in the work streams have struggled to find the proper place for “water” in the SDG process. For example, a proposal for a separate water goal was presented by the Secretary-General’s Advisory Board on Water and Sanitation. The Sustainable Development Solutions Network (consortium of scientists) proposed to include in the list of goals a commitment that “water resources are managed sustainably and transparently.” The UN Global Compact (consortium of responsible businesses) suggested calling upon all States to look critically at overconsumption of water resources, especially in the agricultural sector. And the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (group of experts) proposed including a separate SDG on water, but focusing on individual entitlements to water – making it more of a human rights issue than a sustainable transboundary water management issue. Finally, and most importantly, the Outcome Document of the OWG, around which all subsequent discussions on the SDGs will be organized, included an SDG on the sustainable management of water.

All of these efforts do not mean the mission has been accomplished. At the 24th World Water Week in Stockholm, the Executive Director of the Stockholm International Water Institute rightly noted that nothing is certain until the UNGA adopts its resolution at the end of 2015.

All in all, water was – and still is – on the minds of many people involved in the SDG drafting process, but there exist various and widely diverging views on how exactly the reference to water should be phrased: As a human rights issue? As an economic issue? As an environmental concern? Despite these different opinions, there are some views emerging from the SDG process on which there is general agreement.

Three Emerging Views from the SDG Process

The first view suggests that States should be encouraged to interpret and apply international water law as a legal framework for the sustainable development of water resources. Sustainable development requires a development policy that meets the socio-economic needs of the present generations without compromising the ability of future generations to meet their own needs. The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Convention) notes in its Preamble that “water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs.” The UN Convention on the Law of the Non-Navigational Uses of International Watercourse (Watercourses Convention) refers to the principle of sustainable development in the Preamble and in Article 24. Moreover, Article 5 links the “sustainable utilization” of shared watercourses to water law’s bedrock principle of reasonable and equitable use. Hence, there are plenty of references to sustainability in water law’s most important legal documents. But this says little about the precise balance between the rights of present and future generations to benefit from water resources. Some States still believe that international water law is meant to regulate the economic use of shared watercourses, but not to protect the environment of these watercourses. The SDG process, with its focus on sustainability, provides an ideal opportunity to convince all States to approach the water law framework always wearing spectacles with green glass.

A second view would encourage States to stimulate the further development of the ecosystems approach to international water law. The year 2015 might very well be the year of the ecosystems approach. The ­Post 2015 Water Th­ematic Consultation already made many references to the protection of freshwater “ecosystems.” This emphasis on ecosystems is supported by various national consultations. An explicit reference to an obligation to “restore and maintain ecosystems to provide water-related services” in the targets of the SDG on water was proposed by UN-Water. In the OWG’s Outcome Document, the term ecosystem is applied in a broad sense, and with a lot of confidence. Since there is still much uncertainty about the meaning of the term “ecosystem” in international law, the SDG process could seize the moment, and encourage the further development of the ecosystems approach through international water law. We do have a legal basis: Article 20 of the Watercourses Convention and Article 3(1)(i) of the UNECE Convention both include an explicit reference to the ecosystems approach. And if a whole decolonization wave in the 1960s and 1970s could be based on one meagre reference to “self-determination” in the United Nations Charter (Article 1(2)), it is conceivable that two articles could serve as the basis for a legal regime on the protection of freshwater ecosystems. Article 20 of the Watercourses Convention, in particular, may then become a treaty-within-a-treaty, setting up by itself a legal regime on the protection of freshwater ecosystems.

The third view suggests using the legal framework of international water law to facilitate public participation at all levels of water governance. Both the Women’s Major Groups (see here and here) and Business and Industry called for a more “participatory” water governance system. UN-Water suggested that any system of water management should include “participatory decision-making.” In the Outcome Document of the OWG, the importance of public participation, especially by local communities, in water governance is acknowledged. All of this might encourage States to exploit with more confidence the potential of international water law in facilitating public participation in the sustainable management of waters. No general right of the public to participate can be found in the Watercourses Convention or the UNECE Convention. But the Conventions do not oppose it.

Posted in International Water Law, Sustainable Development | Comments Off on The Sustainable Development Goals Process: Making International Water Law More Sustainable and Ecosystem and Public Participation-Friendly

Dr. Salman M.A. Salman and Professor Gabriel Eckstein: Concluding Thoughts on the Implications of the Entry into Force of the United Nations Watercourses Convention

September 1st, 2014

The following post by Dr. Salman M.A. Salman and Professor Gabriel Eckstein offers concluding remarks about the series 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, and Editor-in-Chief of Brill Research Perspectives, International Water Law. Until 2009, Dr. Salman served as Lead Council and Water Law Adviser for the World Bank. He can be reached at SalmanMASalman [at] gmail.com. Professor Eckstein is a member of the law faculty at Texas A&M University, directs the International Water Law Project, and edits the International Water Law Project Blog. He can be reached at gabriel [at] internationalwaterlaw.org  or  gabrieleckstein [at] law.tamu.edu.

 

Introduction

The preceding essays discussing and analyzing various perspectives on and interpretations of the 1997 UN Watercourses Convention convey different, and sometimes conflicting, views and perceptions about the various principles set forth in the Convention. Indeed, many of these differences arose in the very early years of the work of the UN International Law Commission (UNILC) on the draft Convention, which began in 1971, and continued throughout to its conclusion in 1994. These differences also dominated the two meetings of the UN Sixth Committee convened as a Working Group of the Whole in 1996 and 1997, as well as the UN General Assembly (UNGA) meeting on May 21, 1997, which finalized and approved the Convention. Thus, the journey of the Convention over the past forty-four years has been quite turbulent and contentious.

Ongoing Debates

As evident in the perspectives from Southern Africa and the Nile Basin, one of the most contentious debates surrounds the relationship between the principle of equitable and reasonable utilization and the obligation against causing significant harm between upper and lower riparians. As evidenced in the essays, this issue remains a focal area of debate notwithstanding the efforts made to clarify the issue during the Sixth Committee and UNGA meetings, and through the interpretations and elaboration of the International Court of Justice (ICJ) in the Gabcikovo-Nagymaros and the Pulp Mills cases. A number of lower riparians countries still view the Convention as biased in favor of upper riparians because it subordinates the obligation against causing harm to the principle of equitable and reasonable utilization. Conversely, many upper riparians still believe that the Convention favors lower riparians because of its separate mention of the obligation against causing harm. It is noteworthy that the three countries that voted against the Convention (Burundi, China and Turkey), and many of those that abstained, such as Bolivia, Ethiopia, Mali and Tanzania, are largely upper riparian states. On the other hand, a number of lower riparians, such as Egypt and Pakistan, and those with mixed upper and lower riparian geographies including France and Peru, also abstained, concerned that the Convention favors upstream riparians because it subordinates the no harm rule to the principle of equitable and reasonable utilization. Of all these countries, only France is now a party to the Convention.

Although the SADC countries amended their Protocol on Shared Watercourses in 2000 to make it consistent with the Convention, they tried to maintain parity between the two principles by subjecting each to the other, thus keeping the actual relationship in abeyance and unresolved. The same concerns seem to be a main reason for the South Asia countries’ reluctance to join the Convention.

It is true that the Convention does indeed subordinate the obligation against causing harm to the principle of equitable and reasonable utilization. Yet, this should in no way be taken to indicate a bias in favor of upper riparians. The principle grants each riparian a fair share for utilization, based, at least theoretically, on some objective and widely accepted principles dating back to the Helsinki Rules of 1966. The ICJ, in addition to buttressing and elaborating the principle of equitable and reasonable utilization, confirmed in the Gabcikovo case, the perfect equality of all riparian states in the uses of the watercourse, and the exclusion of any preferential privilege of one riparian state in relation to the others. The ICJ noted that modern development of international law has strengthened this principle for non-navigational uses of international watercourses “as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly.” The ICJ reconfirmed this elaboration in 2010 in the Pulp Mills case.

The interaction of the Convention with existing agreements seem to be another matter raising the concerns of some states, as noted in the perspectives from South America, North America, Southern Africa, and to some extent Central Asia. Article 3 of the Convention asserts that it does not affect the rights or obligations of watercourse states arising from agreements already in force. Nonetheless, it asks the parties to consider, where necessary, harmonizing such agreements with the basic principles of the Convention. Some riparian states with existing bilateral or regional agreements appear to believe that the harmonization formulation causes those prior agreements to be weakened, if not disregarded. Conversely, riparian states left out of existing local and regional agreements criticize the Convention for not subjecting existing agreements to the Convention’s provisions and failing to mandate inclusion of all riparians in such agreements. Both perspectives misconstrue the Convention. A close reading reveals that the Convention recognizes both the validity of existing agreements as well as the rights of riparian states in a shared watercourse that are not parties to such local and regional agreements. This is the interpretation described in the essay discussing the European perspective, which also acknowledges the complementary nature of a general framework instrument, like the Convention, and more specific bilateral and regional agreements.

A third contentious issue, raised most prominently in the essays presenting the Chinese and South Asian perspectives and suggested in the South American perspective, relates to the Convention’s dispute settlement provisions. While some states, like Pakistan, believe that the provisions are too weak because they do not mandate a binding mechanism, other states, such as China, interpret the fact-finding procedures as compulsory and argue that such an approach interferes with their sovereign right to select their own approach to dispute settlement. Indeed, Article 33 of the Convention offers parties a number of methods for settling disputes. However, the only obligatory process set forth is impartial fact-finding and a requirement to consider the fact-finding report in good faith. Thus, while the Convention provides a basic mechanism for ascertaining the facts of a dispute, it leaves the precise method for resolving disputes to the parties. Given that the Convention is a framework treaty, this is clearly a reasonable approach incorporating both points of views.

A fourth concern regards the Convention’s relevance to groundwater resources. As explained in the essays providing the South Asian and North American perspectives, some countries like Mexico and Pakistan question whether the Convention’s regime should extend to subsurface waters. The unease appears based, in part, on inadequate national information related to border-region aquifers and the extent to which the Convention could fully address groundwater challenges, which often are distinct from those affecting surface waters. The Convention, however, provides mechanisms for developing knowledge about hydraulically related water resources, including obligations to cooperate (Art. 8) and share information (Art. 9), and even to generate new knowledge (Art. 9). Furthermore, it would be illogical to impose the Convention’s regime to water resources whose relations to a transboundary watercourse are still unclear. Nevertheless, as considered in the perspective on the Convention’s implications for groundwater resources, with the advent of the Draft Articles on Transboundary Aquifers, which contain a number of noteworthy groundwater-specific provisions, countries may be justified in raising questions regarding how the Convention addresses subsurface water resources. However, the issue should be couched more in terms of a concern rather than a contentious matter preventing ratification of the Convention.

A New Chapter of International Cooperation

Notwithstanding the regional and subject-specific challenges and concerns, there is a clear consensus that transboundary waters should be managed on the basis of cooperation and the equality of all riparians in the use of shared watercourses. Beyond these basic international law tenets, there are a number of advantages that could accrue to nations that ratify the Convention. Foremost is the comfort and security of knowing that riparian neighbors operate from the same foundational norms.

For example, under the Convention, all riparians – regardless of whether upstream or downstream – must abide by the instrument’s detailed notification procedures before embarking on measures that may affect an international watercourse. The Convention does not bestow a veto right in any riparian, but rather requires interaction and communication in conformity with fundamental norms of international law. As a result, riaprians are prevented from taking unilateral action and encouraged to cooperate through various means, including notification.

The notification procedures can also benefit states to the extent that they offer greater certainty, security and comfort to the various international, regional, and national financial institutions about financing projects affecting international watercourses. Agencies such as regional development banks and state development agencies, which typically lack such procedures, now have a global instrument on which to rely on for project notification and processing.

Ultimately, as suggested in Dr. McCaffrey’s essay, the Convention’s most significant value lies in its status as an authoritative statement of customary international water law and a framework under which more specific bilateral and regional agreements can be established and interpreted. In fact, the UNGA itself used the term “codification” when it referred the task of preparing the draft convention to its legal arm, the UNILC.

Hence, entry into force of the Convention represents a broadening commitment by the international community to manage and utilize transboundary freshwater resources through peaceful and cooperative means. Entry into force is also likely to have a “snow-ball” effect of creating an incentive for other states to join, as happened with other treaties, because few states would want to be left out.

Frontier freshwater resources have long been one of the few transboundary natural resources devoid of a global framework treaty. With the UN Watercourses Convention, freshwater resources no longer carry that distinction. Indeed, a new chapter of international cooperation over these resources has emerged.

Posted in International Water Law, UN Watercourses Convention | Comments Off on Dr. Salman M.A. Salman and Professor Gabriel Eckstein: Concluding Thoughts on the Implications of the Entry into Force of the United Nations Watercourses Convention

Richard Paisley and Taylor Henshaw: The 1997 UN Watercourses Convention from a North American Perspective

August 24th, 2014

The following post by Richard Paisley and Taylor Henshaw is the tenth and final essay in the series related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Messrs. Paisley and Henshaw are with the Global Transboundary International Waters Governance Initiative at the University of British Columbia in Vancouver, Canada, which Mr. Paisley directs. Mr. Paisley can be reached at: rpaisley [at] internationalwatersgovernance.com.

Introduction

The nations of North America—Canada, Mexico and the United States (USA)—share a significant number of international drainage basins and transboundary aquifers, comprising 16% of the world’s transboundary river basins. The three countries have entered into various bilateral agreements with their neighbors for the management and allocation of their transboundary waters. However, while each voted in favor of the UN Watercourses Convention (UNWC) when it came before the UN General Assembly, none of them has ratified the instrument. The objective of this essay is to critically consider the absence of these three nations from the roll of the UNWC and to assess whether ratifying and implementing the UNWC would be in the individual and collective best interest of all three countries.

International Freshwater Drainage Basins of North America. Source: UN Watercourses Convention Online Users Guide

Perceptions

The three nations appear to be in no great rush to ratify and implement the UNWC. This may be due to a perception that their international drainage basins are sufficiently managed without the UNWC: long-standing bilateral institutions have been established to deal with various aspects of the conservation and management of international drainage basins in North America.

Prominent among these mechanisms are the International Joint Commission (IJC) between Canada and the USA, and the International Boundary and Water Commission (IBWC) between Mexico and the USA. The history and practice of the IJC and the IBWC provide a rich body of work to review that falls beyond the scope of this essay. Nevertheless, it is pertinent to mention some of the challenges the two commissions face, such as: managing significant risks to water quality and quantity; the linking of border environments to binational trade and associated agreements; new stresses on public health and national economies; changes due to population growth and industrialization; greater demands on shared resources; increasing emphasis on public and indigenous peoples participation in decision-making; greater value placed on non-traditional water uses, such as “in stream” flows; and the imperative to establish ecosystem and active adaptive management approaches to resource management.

In addition, both institutions have experienced recent changes to their constituencies with the increasing influence of environmentalists and economic, social justice, and sustainable development advocates. As a result, ratification and implementation of the UNWC could help make both the IJC and the IBWC more relevant by increasing the focus on, and energy devoted to, the more sustainable conservation and management of transboundary waters and related resources in all three countries.

Substantive Objections

Whether and the extent to which Canada, Mexico and the USA have substantive objections to the UNWC is not well known. This may be because such objections are masked by the fact that all three countries were among, not just the 103 countries who voted in favor of the UNWC, but also the 38 countries to officially sponsor the UNWC.

On reflection, various substantive reasons may exist to explain why all three countries are not overly anxious to ratify and implement the UNWC. Mexico provides a good example. On the one hand, Mexico probably favors the UNWC, in part, because the Convention provides a basis for cooperating over measures to prevent, reduce and control pollution, including from the USA, which is an issue of great sensitivity to Mexicans. On the other hand, groundwater is tremendously important for Mexico where many believe that the conservation and management of shared transboundary aquifers necessitates a different international legal regime to that presented in the UNWC. More specifically, Mexico could be disinclined to ratify and implement the UNWC until more clarity is provided regarding the relationship between the UNWC and the emerging Draft Articles on the Law of Transboundary Aquifers. According to Stephen McCaffrey, such clarity, regrettably, may be a long way off and:

will crucially depend on eliminating both the overlap between the draft and the UN Convention in terms of the physical subject matter they regulate, and the notion of “sovereignty” over shared groundwater, which should have no place in any set of rules governing the use, protection, and management of shared freshwater resources.

Constitutional Politics

At the political level, the ratification and implementation of international treaties has become an increasingly challenging undertaking in all three countries.

In Canada, the negotiation, signing and ratification of international treaties is controlled by the executive branch of the federal government. However, many international treaties, such as the UNWC, deal with matters that fall under the provincial sphere of legislative jurisdiction pursuant to the division of powers in Canada between the federal government, the provincial governments and First Nations (sections 91, 92, 92A and 35 of the Canadian Constitution).  Also, according to Professor Emeritus of Economics and Forestry at the University of British Columbia, Peter Pearse:

A recurrent question in discussions about water management in Canada is “What is the role of the federal government?”  A stranger to these discussions might think, naively, that this is simply a constitutional question.  But even a good constitutional lawyer can not give a crisp answer.  To some extent the question is a political one – “What does the federal government think its role is, at the moment?”  This changes.

As a practical matter this means that ratification and implementation of the UNWC in Canada would likely trigger challenging and hard-nosed fiscal and other negotiations among the federal, provincial and First Nations levels of government. An analogous situation occurred when Canada was asked to ratify and implement the Espoo Convention on Environmental Impact Assessment in a Transboundary Context.

In the USA, the legal situation regarding international treaties is somewhat different, but possibly even more challenging. Under United States constitutional law, an international “treaty” is an agreement that has received the “advice and consent” of two-thirds of the United States Senate and has been ratified by the President (see here). As a practical matter, given the increasing political polarization within the United States Senate, obtaining the consent of two thirds of Senate members for any multilateral treaty, including the UNWC, would be exceedingly challenging.

Mexico is much closer to Canada constitutionally than to the USA as Mexico constitutionally allocates separate and exclusive spheres of authority to the states/provinces and the federal government. International treaties must conform to the Mexican Constitution in order to be valid. However, many international treaties address topics that in Mexico fall within the exclusive authority of the states/provinces. Seemingly, in practical terms this means that Mexico may need to enact domestic legislation to transform international treaty obligations into enforceable domestic law, which could be both time consuming and expensive.

Champions

Another reason why the UNWC has not yet been ratified and implemented in Canada, Mexico and the USA is the paucity of champions at the political level in all three countries. This resonates with Nicolo Machiavelli’s observation:

there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them.

Justifying the UNWC in North America

Despite the apparent obstacles noted above, there are at least three compelling reasons why Canada, Mexico and the USA should immediately ratify and implement the UNWC. First, ratification and implementation will send a strong and important message to each other, and to the world community, generally, that sovereign states have important rights and responsibilities when it comes to transboundary freshwater resources.

Second, the fact that Canada and the USA are variously both upstream and downstream of each other and that the USA is upstream of Mexico, will particularly and importantly help dispel any lingering misperception that the UNWC may be biased in favour of downstream or upstream states.

Third, Canadian, Mexican and American support for the Convention could not be more timely given how the world community is currently struggling with the harsh realities of climate change and water scarcity.

Ratifying and implementing the UNWC in North America would also demonstrate a wider acceptance of practice under the Convention as representing customary international law. In turn this could place the UNWC higher on various political agendas and could help lead to a more stable framework for transboundary water cooperation globally.

 

Posted in International Water Law, North America, UN Watercourses Convention, Uncategorized | 1 Comment »