Watercourse Convention Set to Enter into Force on 17 August 2014

May 22nd, 2014

By Gabriel Eckstein

Click HERE for the latest status of the 1997 UN Watercourses ConventionWell, it finally happened.  On 19 May 2014, Vietnam became the 35th party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses. This means that on 17 August 2014, 90 days after that 35th ratification was deposited, the Convention will come into force.

Long in coming, the Convention’s success was never guaranteed. Adopted by the UN General Assembly in 1997, the Convention appeared set for ratification as 103 of the UN’s Member States voted in favor of it. Only three countries voted against – Burundi, China, and Turkey – while 27 nations abstained and 33 were absent from the vote. That vote, however, masked long-standing disagreements over how transboundary fresh water resources should be allocated and managed. In particular, upper and lower riparians disagreed between the primacy of the Convention’s cornerstone principles of equitable and reasonable use – favored by most upper riparians – and the doctrine of no significant harm – preferred by most lower riparians (for a more detailed analysis of the UNGA vote on the Convention, as well as the disparate interests, see my article).

Lackluster support in the years following the Convention’s inception suggested to some that the treaty was doomed to failure. More recently, though, the rate of ratifications more than doubled (18 in the first 12 years in comparison to 17 over the past five years). While that resurgence may have been due, in part, to the efforts of World Wildlife Fund (which in around 2009, added implementation of the Convention to its advocacy agenda), it also suggests a broadening recognition that nations have an obligation to cooperate over transboundary freshwater resources. Maybe it’s the threat of climate change, or concerns over dwindling domestic water resources. But, the fact that states are willing to bind themselves to the procedural and substantive norms of the Convention is a promising sign.

Map of State Parties to the UN Watercourses Convention

Map of State Parties to the UN Watercourses Convention

Entry into force of the Convention, though, is not the last word on the matter. In fact, this milestone raises as many new questions as existed leading to its implementation. For example, what does the geographic distribution of member states indicate for the global success of the treaty? Of the 35 ratifications, the vast majority are from either Africa (12) or Europe (16); only two ratifying parties are found in Asia and none come from the American hemisphere; five others are from the non-African Middle East region, albeit a total of eight MENA nations are now a party to the Convention. At the very least, this distribution suggests a certain geographic bias toward (and against) the Convention.

In addition, what will implementation of the Convention mean in practice? How will nations implement its mandates within their borders and in relation to riparian neighbors? Why have nations in the Americas and Asia eschewed ratification? What does the entry into force of the Convention mean for the UNECE Water Convention, which is already in force in much of Europe and on 6 February 2013, opened its membership to the rest of the world? And, what will the Convention’s implementation mean for existing regional and local transboundary freshwater agreements?

In the coming weeks, the IWLP Blog will host a series of essays addressing many of these intriguing questions. We have invited some of the most knowledgeable scholars and practitioners to offer their perspectives on the Convention’s imminent entry into force as well as on its future. As part of this series, we invite you to participate in the conversation by submitting comments at the bottom of each essay and add your own perspectives and opinions to the discussion. As you formulate your thoughts, you might want to review a prior series hosted by the IWLP Blog and prepared by Dr. Alistair Rieu-Clarke and Ms. Flavia Loures (see here and here). In addition, Water International published a special issue on the Convention accessible here.

The entry into force of the Convention is a significant landmark development in the international community’s efforts to better and peacefully manage transboundary fresh water resources. Whether this achievement translates into improved and more peaceful cooperation is a future that has yet to be written.

Essays related to the entering into force of the 1997 UN Watercourses Convention

  1. Dr. Stephen McCaffrey: The Entry Into Force of the 1997 Watercourses Convention

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

  3. Dr. Dinara Ziganshina: UN Watercourses Convention in Central Asia – The Current State and Future Outlook

  4. Dr. Kishor Uprety: A South Asian Perspective on the UN Watercourses Convention

  5. Dr. Götz Reichert: Entry into Force of the UN Watercourses Convention – Should Europe Care?

  6. Professor Patricia Wouters: Considering China’s approach to the UN Watercourses Convention – Time to revisit?

  7. Professor Gabriel Eckstein: Implications of the UN Watercourses Convention for Groundwater Resources

  8. Robyn Stein and Georgina Mackenzie: Implication of the Entry Into Force of the UN Watercourses Convention for Southern African States

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

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

  11. 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

Posted in International Water Law, UN Watercourses Convention | 4 Comments »

Côte d’Ivoire Becomes 34th Party to the UN Watercourses Convention – One More and Its Official

February 25th, 2014

On 25 February  2014, Côte d’Ivoire became the 34th Party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses.  One more, and the Convention will reach the 35 members required for it to go into force.

You can find prior postings and musings about the Convention and the growing number of ratifications over the past 3 years here, here, here,  here, here, here, here, here.

Posted in Africa, International Water Law, UN Watercourses Convention | Comments Off on Côte d’Ivoire Becomes 34th Party to the UN Watercourses Convention – One More and Its Official

Offshore fresh water aquifers: which law will apply?

January 22nd, 2014

The following post is by Renee Martin-Nagle, a Visiting Scholar with the Environmental Law Institute in Washington, DC.  Ms. Martin-Nagle can be contacted at martin-nagle [at] eli.org.

In recent years, increasingly urgent voices have been warning of a global water crisis, as the human species consistently uses more water than is sustainably available.  Pictures of parched lands, disappearing lakes and streams, and single-faucet villages have become commonplace as thirsty straws siphon life-giving water from above and below the surface of the earth.  Currently a billion people – 40% of humanity – live in water-stressed conditions, and studies predict that the situation will deteriorate rapidly in the next few years, as the agricultural sector, which already accounts for an average of 70% of global fresh water use, struggles to feed an additional billion by 2030.

Figure 1: World map of topography and bathymetry showing known occurrences of fresh and brackish offshore groundwater.

Figure 1: World map of topography and bathymetry showing known occurrences of fresh and brackish offshore groundwater.
Reprinted by permission from Macmillan Publishers Ltd: V. Post, et.al., Offshore fresh groundwater reserves as a global phenomenon, Nature, Vol. 504, pp. 71–78 (5 December 2013) doi:10.1038/nature12858

Suddenly, in early December, a ray of hope appeared as a group of Australian scientists published a paper in Nature heralding discovery of vast meteoric fresh groundwater reserves off the coasts of China, Australia, North America, Greenland, Suriname, Nigeria and South Africa.  The group’s leader, Dr. Vincent Post of the National Centre for Groundwater Research and Training (NCGRT) and the School of the Environment at Flinders University, predicted that the “volume of this water resource is a hundred times greater than the amount we’ve extracted from the Earth’s sub-surface in the past century since 1900,” and went on to say that “[k]nowing about these reserves is great news because this volume of water could sustain some regions for decades.”  In spite of a cautionary message in the article that “[o]ffshore groundwater is not the answer to global water crises”, one recent headline excitedly proclaimed, “Aussie Scientists May Have Solved the Global Water Shortage Crisis.”

There are several reasons why the prospect of vast seabed aquifers should not distract us from addressing fresh water shortages.  First, the article admits that “[d[espite convincing indications of the widespread presence of offshore paleo-groundwater, direct observations remain limited.”  With very few exceptions, the presence of seabed aquifers has not been proven but is based on sporadic sampling and intensive modeling.  Technical challenges must be overcome in order to locate and access the aquifers, without introducing contamination that would forever foul the confined waters.  Further, the waters are not expected to be fresh, but rather either brackish or somewhat saline, meaning treatment will be required prior to use.  Once the quantity and quality of the contained water is determined, it must be abstracted and transported to a treatment or desalination facility that would probably be located on-shore at some distance from the wellhead.  Finally, after weighing the benefits and risks, one or more parties must be willing to invest substantial sums to find, recover and treat the water.  The investors would be unusually philanthropic if they did not expect an economic return within a reasonable time, so a mechanism for monetizing the water would have to be agreed upon.  If we accept Dr. Post’s statement that the seabed aquifers would meet our needs for only a few decades, any “solution” offered by the discovery would be short-lived at current consumption rates.

Figure 2: Global overview of inferred key metrics and cross sections of well-characterised vast meteoric groundwater reserves.

Figure 2: Global overview of inferred key metrics and cross sections of well-characterised vast meteoric groundwater reserves.
Reprinted by permission from Macmillan Publishers Ltd: V. Post, et.al., Offshore fresh groundwater reserves as a global phenomenon, Nature, Vol. 504, pp. 71–78 (5 December 2013) doi:10.1038/nature12858

Assuming, however, that the challenges regarding accessibility and financial return could be overcome, determinations would have to be made whether jurisdiction and ownership of the water would follow domestic law, international water law, or the Law of the Sea.  Aquifers lying under the territorial sea of one nation would doubtless be governed by its domestic laws, but questions would arise for transboundary aquifers. If international water law principles were to guide ownership and use, a further determination would have to be made about which guidelines to follow.  The Convention on the Law of the Non-navigational Uses of International Watercourses (the Watercourses Convention) needs ratification by two more states to enter into force, but by its terms the Watercourses Convention only applies to aquifers with a link to a surface water system.  Since they are fossil aquifers, the seabed aquifers lack such a link to any surface water system.  The 2008 UN Draft Articles on the Law of Transboundary Aquifers (the “Draft Aquifer Articles”) include fossil aquifers within their scope, granting nations full sovereignty to aquifer formations and the water therein that lie under their borders (Art. 3).  However, the Draft Aquifer Articles have thus far received scant attention, and, in the Case Concerning the Gabčíkovo-Nagymaros Project, the International Court of Justice rejected the notion of absolute sovereignty over transboundary waters.  If the treaty void for transboundary aquifers were to be filled by adopting customary laws that have developed for transboundary surface waters, then nations sharing transboundary seabed aquifers may be expected to abide by such customary law principles as equitable and reasonable use, prevention of significant harm and exchange of information.

Alternatively, one could argue that the UN Convention on the Law of Sea (UNCLOS), which has entered into force, should serve as the prevailing set of guidelines.  In that case, a preliminary determination would have to be made as to whether water should be treated as a non-living resource such as minerals, oil and gas.  Under UNCLOS, non-living resources located within the 200-mile exclusive economic zone (EEZ) of a nation belong to that nation.  Oil and gas extraction follows the law of capture, which can result in windfall for nations with access to technology and financial resources.  An argument could be made that fresh, or even brackish, water should not be treated as a non-living resource, since water is the most vital of resources, necessary to support terrestrial life.  Indeed, the scope of the Draft Aquifers Articles initially included oil and gas along with water, but water was deemed too important to be treated in the same way as other extractive resources (see C. Yamada, Fourth report on shared natural resources: transboundary groundwaters (2007)).

The day may come when technology, financing and need will all converge to make extraction of the water in the seabed aquifers practical and even necessary.  Prior to that day, fundamental questions on legal regimes and treatment of vital resources will have to be raised and answered.

Posted in New Resources & Information, Transboundary Aquifers | 4 Comments »

Israeli-Palestinian Agreement on Water within Sight

January 8th, 2014

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

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

Failings of the Oslo Process

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

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

Shared Water Resources of Israel, Palestine and Jordan

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

Breaking Away from the Oslo Model for Water

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

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

The Structure of the FoEME Proposal

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

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

 

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

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

 

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

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

1997 UN Watercourses Convention: 33 Parties, 2 More to Bring it in Force

December 21st, 2013

On 20 December 2013, Ireland became the 33rd Party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses, only seven days following the accession of the United Kingdom to the Convention.  Of the 33 ratifications, four occurred in 2013 (Ireland, Montenegro, Niger, and the UK), five in 2012 (Benin, Chad, Denmark, Italy, and Luxembourg), three in 2011 (Burkina Faso, France, and Morocco), three in 2010 (Greece, Guinea-Bissau, and Nigeria) and two in 2009 (Spain and Tunisia). If the present rate of ratifications continue, the Convention could come into force within the next year, possibly in a matter of months. The Convention requires 35 parties for it to achieve that status.

Curiously, of the 33 parties to the Convention, the vast majority are from either Africa (11) or Europe (16). Only one ratifying state is found in Asia (Central Asia to be precise) and none come from the American hemisphere. Five others are from the non-African Middle East region, albeit a total of eight MENA nations are now a party to the Convention.

It is certainly peculiar that not one nation from the Americas has ratified the Convention. Venezuela and Paraguay were two very early signatories to the Convention. Yet, neither has made much headway toward full party status, and no other country in the region seems poised to join the Convention. And in Asia, only Uzbekistan has made the commitment.

What this geographic distribution portends is still unclear. At the very least, it suggests a certain geographic bias toward (and against) the Convention. And, once the Convention comes into force, that could raise the question of whether the geographic distribution of ratifying nations is adequate to project the Convention globally. Nations in Asia and the Americas, for example, might claim that the principles codified in the Convention apply only regionally – in Africa and Europe, and possibly the Middle East.

Those nations who are now full parties to the Convention have made a commitment to abide by the Convention’s norms. If they want the rest of the world to follow suit, they may want to consider developing a compliance strategy, possibly even a promotion strategy aimed at convincing other nations and regions to join the Convention. Additionally, given that only two ratifications are needed before the Convention comes into force, they need to begin thinking about a Convention Secretariat to administer the Convention and related activities (such as monitoring compliance and encouraging membership).

Posted in International Water Law, UN Watercourses Convention | 5 Comments »

Adoption of Regional Strategic Action Plan on the Nubian Sandstone Aquifer

October 20th, 2013

The following post is by Raya Marina Stephan, a water law specialist and consultant, and Chair of the Publication Committee of the International Water Resources Association. Ms. Stephan can be reached at raya.stephan [at] yahoo.com.

On 18 September 2013, the Ministers in charge of water resources in the four States of the Nubian Sandstone Aquifer System (NSAS) (Chad, Egypt, Libya & Sudan), and the Chairperson of the Joint Authority for the Study and Development of the Nubian Aquifer, signed an important document, the Regional Strategic Action Plan (SAP).

The NSAS is one of the largest aquifer systems in the world, composed of non-renewable groundwater. It extends over 2,000,000 km2 and contains about 540,000 km3 of water, out of which 15,340 km3 is believed to be exploitable.

Nubian Sandstone Aquifer System (NSAS)

Nubian Sandstone Aquifer System (NSAS)

Cooperation over the NSAS dates back at least to 1989 when Egypt and Libya established among themselves a Joint Authority (JA) for the Study and Development of the Nubian Sandstone Aquifer System. In 1992, the two States adopted the agreement “Constitution of the Joint Authority for the Study and Development of the Nubian Sandstone Aquifer Waters” (see Annex 7 in the GEF Project Document).  Sudan joined the collaboration in 1996 and Chad officially affiliated in 1999.   This agreement is one of the few agreements worldwide over a transboundary aquifer. While the number of identified transboundary aquifers globally exceeds 315 (IGRAC 2012), only four have an interstate agreement. Besides the NSAS, there are: the agreement on the Genevese Aquifer (French, English), the Ministerial declarations on the North Western Sahara Aquifer System, and the agreement on the Guarani Aquifer (Portuguese, Spanish, English). It is also relevant to mention the 2009 memorandum of agreement and road map adopted by the States of the Iullemeden aquifer system (Niger, Nigeria and Mali), however little progress has been made on this effort so far.

The agreement on the NSAS, as its name indicates, is an agreement creating the Joint Authority (JA), which is intended to serve as a joint institution/commission for the management of the shared aquifer. The agreement provides the basic rules for its functioning, and its responsibilities are quite wide and large. For instance, the JA can, conduct studies on the Nubian aquifer, is entitled to develop programs and plans for the utilization of water, and can propose and execute a common policy for the development and utilization of the water resources of the aquifer. The JA can also ration the consumption of water from the Nubian Sandstone Aquifer in the member countries and, therefore, holds real management responsibilities. The agreement is, thus, more an institutional agreement than merely a water management one.

The first project (1998-2002) on the Nubian aquifer, the “Regional Strategy for the Utilization of the Nubian Sandstone Aquifer System” executed by the Center for Environment and Development for the Arab Region and Europe (CEDARE), resulted in an improved scientific knowledge of the aquifer system and the consideration of the socio-economic conditions in the riparian States. During this project, the JA acted as the Project Steering Committee and was relatively active holding yearly meetings.

In 2006, the four States engaged in a second project – Formulation of an Action Programme for the Integrated Management of the Shared Nubian Aquifer – funded by the Global Environment Facility (GEF) and executed by the International Atomic Energy Agency, with a support from UNESCO (see project website). The overall objective of the project is to establish a rational and equitable management of the NSAS for sustainable socio-economic development and the protection of biodiversity and land resources. To achieve this goal, national multidisciplinary teams in the riparian States were constituted and, with the support of a team of international experts, prepared the Shared Aquifer Diagnostic Analysis (SADA) to jointly identify, understand, and reach agreement on the priority issues, threats, and root causes of the NSAS. The SADA identifies the following key transboundary concerns:

  1. Declining water levels related to abstractions
  2. Damage or loss of the ecosystem and biodiversity that are linked to the aquifer at oases
  3. Water quality deterioration from pollution (industry, agriculture and urban)

Following adoption of the SADA, national team of experts identified the common NSAS vision and key water resource objectives as well as the ecosystems linked and dependent on the aquifer.  Finally, a common set of management actions addressing the key NSAS transboundary issues were prepared, which lead to the recently-signed SAP.  The adopted vision for the NSAS under the SAP is:

“To assure rational and equitable management of the NSAS for sustainable socio-economic development and the protection of biodiversity and land resources whilst ensuring no detrimental effects on the shared aquifer countries.”

The signing of the SAP document at the ministerial level represents an important step forward in building the cooperation process among the NSAS countries. It is the common and joint commitment to the identified shared vision for the cooperative management of the NSAS by the States and the JA, as well as the commitment to implement the actions.

Posted in Africa, Transboundary Aquifers | 7 Comments »

Rethinking Transboundary Ground Water Resources Management: A Local Approach along the Mexico-U.S. Border

May 6th, 2013

The following post is by Gabriel Eckstein, Director of the International Water Law Project, Professor of Law at Texas Wesleyan University, and Of Counsel with Sullivan & Worcester. He can be reached at gabriel [at] internationalwaterlaw.org. This post is based on a new article by the same title.

The nearly 2,000 mile-long border between Mexico and the United States is hot and dry. Few rivers cross this arid expanse. Yet, despite the lack of visible, life-sustaining water, the region is growing – the combined border population, currently around 14.4 million, is expected to increase 40% by 2020.  The reason for this remarkable growth is ground water, more specifically, transboundary aquifers.  As many as twenty aquifers straddle the Mexico-U.S. border, many of which serve as the primary or sole source of fresh water for the border’s communities and unique ecosystems.

Map produced by the U.N. Educational, Scientific, and Cultural Organization, the World Meteorological Organization, and the International Groundwater Resources Assessment Centre suggesting the presence of 10 transboundary aquifers or aquifer systems along the Mexico-U.S. border.

Notwithstanding the undeniable importance of the region’s transboundary aquifers, neither Mexico nor the United States seem inclined to pursue a border-wide pact to coordinate management of these critical freshwater resources. While recommendations have been proffered for more than forty years, all appear to have fallen on deaf ears.  As a result, these resources are now being overexploited on both frontiers as populations and industries pump with little regard for sustainability or transboundary consequences.  Moreover, these subsurface reservoirs are being fouled by untreated wastes, agricultural and industrial by-products, and other sources of pollution.  Imminently unsustainable, the situation portends a grim future for the region.

If both federal governments are unwilling to take decisive steps, what else can be done?  Are there alternatives to a formal, comprehensive, border-wide regime that would address the complexity and multitude of issues related to the various transboundary aquifers on the border?

In a recently published article, I advocate for an alternative approach, one that sidesteps the respective federal authorities and places the burden of pursuing cross-border cooperation on the communities that so depend on these critical fresh water resources.  Essentially, I propose that subnational entities at the local and regional level pursue cooperation over transboundary aquifers in the form of informal, locally-specific, cross-border arrangements.

While this tactic challenges the national governments’ traditional monopoly over international relations, especially as they relate to transboundary natural resources, there is good reason to believe that such an approach could achieve what Mexico City and Washington, DC have failed (or declined) to do – create effective collaborative schemes for the mutual and sustainable management of the region’s transboundary aquifers.

Map showing the six Mexican states and four US states, as well as numerous sister cities, along the Mexico-US border. Map courtesy of USEPA: http://www.epa.gov/region9/annualreport/07/images/mexico-us-border.jpg

Under the unique circumstances of the Mexico-U.S. border, informal and quasi-formal arrangements are more likely to create viable cross-border pacts that would be respected by the local communities.  The degree of interest that the national authorities have in a local issue is often directly proportional to the physical distance from the capitol.  In contrast, local decision-makers are typically better informed about local and regional cross-border concerns than federal bureaucrats, especially on issues related to the management of local fresh water resources.  Moreover, local authorities are better able to reflect the values and preferences of those most likely to be affected by a water accord with a neighboring country, which, for a local border community, is merely a short drive away.  Critically, local decision-making would likely be more sustainable, as well as responsive and adaptable to changing climatic and economic circumstances and improved knowledge, given that the local communities and their children will have to live with their decision far into the future.

In addition, a local approach to the management of transboundary aquifers makes hydrologic sense.  No two aquifers are alike; each functions as a complex and unique hydrological system.  Moreover, no two aquifers are perceived equally by overlaying communities, especially where those communities are highly dependent on the resources to meet their daily freshwater needs.  Hence, aquifers traversing the Mexico-U.S. border cannot be managed effectively through a single, comprehensive, border-wide treaty.  While a border-wide scheme may be politically convenient, such an approach could only offer very general guidelines and standards, and may prove detrimental to the sustainable management of some of the region’s subsurface waters.  Rather, an effective, sound, and equitable management plan should be tailored to each transboundary aquifer’s unique characteristics and circumstances.

One concern often raised with a local approach to the management of transboundary natural resources is the legality of such action.  As is true under most nations’ foundational instruments, both the Mexican and the U.S. constitutions recognize the national government as the sole authority empowered to deal with foreign representatives; they prohibit states, cities, and other subnational political units from entering into treaties and other formal relations with counterparts across the border.  The goal here, however, is not to create multiple, locally-specific, formal treaties throughout the border.  Rather, the goal is the development and implementation of informal or quasi-formal, locally-specific, cross-border arrangements that are implemented through cooperative understandings or memorandum of understanding, or more structured contracts for goods or services.  In the United States, while the former would be immune to Constitutional scrutiny due to their unofficial, unenforceable, and non-binding nature, the latter would be immune to the extent that the U.S. Congress has not preempted such activities under its authority to regulate interstate commerce.

Given the state of the economy, domestic and international terrorism, drug wars, and other societal and political challenges, ground water on the Mexico-U.S. border is not a priority of the Mexican and American governments.  Unfortunately, that lack of prioritization is jeopardizing the long-term viability and habitability of the border area and portends the possible downfall of many communities and ecosystems throughout the region.

The two federal governments, though, are not indispensable for developing sustainable and coordinated ground water relations on the border.  Through informal locally-specific, cross-border arrangements, frontier communities can, on their own, achieve viable cross-border pacts that will ensure the water futures of their peoples, economies, and environment.  For a more comprehensive consideration of this proposal, please see my recently published article.

Posted in International Water Law, Mexico-US Border, North America, Transboundary Aquifers | 1 Comment »

Remembrance of Ambassador Chusei Yamada

March 25th, 2013

It is always sad when a colleague passes on. Somehow, it is even more sorrowful when that person was a friend to and respected by so many. On 21 March 2013, Ambassador Chusei Yamada passed away in his native Japan; and the global water community lost a great friend.

Ambassador Chusei Yamada

During his long and distinguished career, Ambassador Yamada served in various diplomatic posts, including as Japan’s Ambassador to Egypt (1989-92), India (1993-95), and Bhutan (1993-95).  He also served as an arbitrator and conciliator under the UN Convention on the Law of the Sea, and most recently, as Special Assistant to the Minister for Foreign Affairs of Japan.  While all eminent and critical roles, his work toward bridging the water divide between riparian aquifer nations may be his most significant legacy.

I met Ambassador Yamada in 2003 when I was first invited to participate on a UNESCO-organized advisory group to the UN International Commission (UNILC).  Ambassador Yamada had been selected as the UNILC’s Special Rapporteur on the topic of Shared Natural Resources and had undertaken a process to draft principles of law that would apply to transboundary aquifers.

Ambassador Chusei YamadaI had always thought it rather astute of the Commission to select someone for this role from a country that, as an island-nation, had no contiguous neighbors with whom to share transboundary fresh water aquifers. As I got to know the Ambassador, though, I realized that his selection as Special Rapporteur was even more portentous in that from the start, Ambassador Yamada poured his heart and soul into this singular challenge.

Ambassador Yamada had no formal background in ground water resources let alone training in a hard science.  He was a lawyer and a diplomat, and above all a gentleman (see Ambassador Yamada’s brief bio).  Yet, in the six years that our advisory group supported his efforts, the Ambassador became so well versed in hydrogeology and related water issues that the International Association of Hydrogeologists recognized him “for outstanding contribution to the understanding, development, management and protection of groundwater resources internationally” and awarded him their Distinguished Associate Award for 2008 (see IAH newsletter, Issue D30, December 2008, pp. 3-4).

Yamada and IAH Award

“Ambassador Chusei Yamada receiving the IAH Distinguished Associate Award 2008 at a ceremony in Geneva in July 2008. Willi Struckmeier (then Secretary General and now IAH President) hands over a special issue World Hydrogeological Map showing transboundary aquifers while Shammy Puri, Chairman of the IAH Transboundary Aquifer Resources Management Commission and now IAH Secretary General, looks on.” From: IAH newsletter, Issue D30, December 2008, pp. 3-4.

Ambassador Yamada’s contribution to the global water community cannot be overstated.  He made every effort to ensure that the principles that the UNILC drafted for the management of transboundary aquifers would be based on sound science as well as be socially and politically feasible.  As he gained new knowledge and information, he sought to pass on that education to his colleagues in the UN; as his recommendations faced challenges based on misunderstandings and cross-border mistrust, he used his diplomatic acumen to achieve compromises.

It is true that some of the nineteen draft articles that the UNILC finally transmitted to the UN General Assembly in late 2008 may not be ideal.  Nevertheless, they represent the most significant and comprehensive effort to date to address transboundary aquifers and to develop a durable legal framework for the sustainable and peaceful management of shared ground water resources.  Based on that framework, nations around the world are now beginning to reach across their frontiers to coordinate and collaborate with their neighbors over their shared aquifers (see e.g., Agreement on the Guarani Aquifer [Spanish] [Portuguese]).  Truly, we all owe Ambassador Chusei Yamada our gratitude for laying out such a propitious roadmap.

Posted in International Water Law, Transboundary Aquifers, Water Legends | Comments Off on Remembrance of Ambassador Chusei Yamada

2013 – International Year of Water Cooperation

March 18th, 2013

The following post is by Dr. Salman M.A. Salman, an academic researcher and consultant on water law and policy and a Fellow with the International Water Resources Association. Until December 2009, Dr. Salman served as Lead Counsel and Water Law Adviser with the Legal Vice Presidency of the World Bank. He can be reached at Salmanmasalman [at] gmail.com.

The United Nations General Assembly (UNGA) adopted on December 20, 2010, resolution 65/154, proclaiming 2013 as the “International Year of Water Cooperation.” The resolution, adopted without vote, called on all member states of the United Nations system and all other actors to take advantage of the Year to promote actions at all levels. Such actions include encouraging international cooperation, aimed at the achievement of the internationally agreed water-related goals contained in Agenda 21, the Programme for the Further Implementation of Agenda 21, the United Nations Millennium Declaration, and the Johannesburg Plan of Implementation, as well as to increase awareness of their importance. Celebrations of the World Water Day on March 22, 2013, will focus on plans and programs for achieving the objectives of this resolution. The purpose of this post is to trace the efforts of the United Nations to highlight the problems and challenges faced in the realm of water resources and to underscore the need for cooperation at all levels to address those problems.

UN World Water Day 3012The United Nations started paying attention to water resources in 1972. In June of that year, the United Nations Conference on the Human Environment was held in Stockholm, Sweden. Principle 2 of the Stockholm Declaration stated that “the natural resources of the earth including the air, water, land, flora, and fauna … must be safeguarded for the benefit of the present and future generations through careful planning and management.” Five years later, water resources received far reaching attention of the world community for two full weeks when the Mar del Plata Water Conference was held in Argentina, March 14 to 25, 1977. The Mar del Plata Action Plan included detailed provisions on water resources assessment, water use and management efficiency, the environment, the right to water, and international cooperation. One critical outcome of the conference was the proclamation of the period 1981 to 1990 as “the International Drinking Water Supply and Sanitation Decade.”

The world community’s attention to the emerging problems facing water resources continued. In January 1992 the International Conference on Water and the Environment was held in Dublin, Ireland, and issued the “Dublin Statement on Water and Sustainable Development.” The Conference underscored the fact that water resources management should be based on a participatory approach involving users, planners and policy makers at all levels. It addressed the two principles of water as an economic good, as well as the right to water at an affordable price. This meeting was followed six months later by the United Nations Conference on Environment and Development that was held in Rio de Janeiro, Brazil, in June 1992. Agenda 21 of the Rio Summit “Actions on Sustainable Development” included a separate chapter (Chapter 18) on water resources which laid down detailed plans, programs and action plans to “satisfy the freshwater needs of all countries for their sustainable development.” Cooperation at all levels was highlighted as one important requirement for achieving this objective.

Building on the recommendations of the Rio Conference, the UNGA adopted on December 22, 1992, resolution 47/193, declaring March 22 of each year, as World Water Day, to be observed starting in 1993, and invited states to devote the day in the national context to concrete activities such as the promotion of public awareness through publication and diffusion of documentaries and the organization of conferences, round tables, and seminars related to the conservation and development of water resources.

A number of other actions in the water resources field were thereafter taken by the UNGA. The most important of those has been the adoption by the UNGA on May 21, 1997, by more than one hundred of its members, of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. The Convention is predicated on the principle of cooperation of the watercourse states, and indeed it mentions the words cooperation/cooperate fifteen times. The Convention needs the ratification/acceptance of 35 parties to enter into force. Thus far 30 countries have ratified/accepted the Convention, raising hopes that the Convention may even enter into force during 2013, making the year also the year of international water cooperation (see Status of the Convention).

Furthermore, the UNGA adopted resolution 55/196 on December 20, 2000, proclaiming the year 2003 as the International Year of Freshwater, and called for concerted actions and efforts for better management and conservation of water resources, through inter alia, cooperation between the different users. This followed the Millennium Declaration that was adopted by the UNGA on September 8, 2000. One of the eight millennium development goals to be achieved by 2015 is reducing by half the proportion of people without sustainable access to safe drinking water. The UN Summit on Sustainable Development that was held in Johannesburg, South Africa, in September 2002 added a similar goal with regards to sanitation. The need to achieve both goals was underscored by the UNGA resolution 58/217 adopted on December 23, 2003, which declared the period 2005 – 2015 as the “International Decade for Action, Water for Life,” and stated that the goals of the decade should include a greater focus on water related issues at all levels to achieve the internationally agreed goals.

The UNGA decided to give similar attention to sanitation, and addressed this matter through resolution 59/228 adopted on December 22, 2004, as well as resolution 61/192 of December 20, 2006 which proclaimed 2008 as the international year of sanitation.

The fact that close to one billion people lack access to improved water resources, more than two and a half billion people are without provision for sanitation, and one and a half million children under five die annually of water-borne diseases are constant reminders of the challenges facing humanity in the field of water resources. It should also be added that by 2050 one fourth of world population will live in countries with chronic water shortage, mostly in the Middle East and Africa.

Thus, the declaration of 2013 as the international year of water cooperation and the celebrations that will take place on March 22 this year should mark as another important reminder that cooperation is needed at all levels – among individual and corporate users, districts and provinces within the country, and more importantly among states – to manage, share, protect and conserve the most vital heritage of mankind, its water resources, so as to address these challenges.

Posted in Human Rights, International Water Law | Comments Off on 2013 – International Year of Water Cooperation

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

March 6th, 2013

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

Battir agricultural terraces. Photo courtesy of The Advocacy Project.

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

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

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

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

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

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

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

 

Post Script (March 29, 2013)

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

Posted in Middle East, Water Conflicts | 2 Comments »