Hydropolitics in the MENA Region Ana Elisa Cascão King’s College of London Presentation to TWM 2008 MENA 2nd-3rd November 2008 3rd November

2 - International Water Law International Water Law - watercourses and groundwater Main legal frameworks IWL in the MENA region Successes and failures Nexus water, law & politics Law as a tool for conflict resolution/ prevention? EXERCISE 2: Nile Basin case – How to apply IWL?

International Water Law - watercourses and groundwater

Main legal frameworks

IWL in the MENA region

Successes and failures

Nexus water, law & politics

Law as a tool for conflict resolution/ prevention?

Main international legal frameworks 1966 Helsinki Rules on the Uses of the Waters of International Rivers (ILA) 1997 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses (ILC) 2004 Berlin Rules on Water Resources (ILA) 2008 Draft Articles on the Law of Transboundary Aquifers (ILC)    

1966 Helsinki Rules on the Uses of the Waters of International Rivers (ILA)

1997 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses (ILC)

2004 Berlin Rules on Water Resources (ILA)

2008 Draft Articles on the Law of Transboundary Aquifers (ILC)

UN CONVENTION – MENA’ POSITIONS VOTING (1997) In favour: Algeria, Bahrain, Iran, Jordan, Kuwait, Libya, Morocco, Oman, Qatar, Saudi Arabia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen Against: Turkey Abstained: Egypt, Ethiopia, Israel Absent: Lebanon STATUS (2008) Ratification: Syria (1998) Jordan (1999) Accession: Lebanon (1999) Libya (1999) Qatar (2002) Iraq (2005) Signature only: Tunisia (2000) Yemen (2000 )

VOTING (1997)

In favour:

Algeria, Bahrain, Iran, Jordan, Kuwait, Libya, Morocco, Oman, Qatar, Saudi Arabia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen

Against:

Turkey

Abstained:

Egypt, Ethiopia, Israel

Absent:

Lebanon

STATUS (2008)

Ratification:

Syria (1998)

Jordan (1999)

Accession:

Lebanon (1999)

Libya (1999)

Qatar (2002)

Iraq (2005)

Signature only:

Tunisia (2000)

Yemen (2000 )

Campaigns for the ratification of UN Convention GOALS:  Ratification Entry into force Implementation Policy guidelines Level playing field PREVENT: Unilateral Action Legal weaknesses Water misgovernance Conflicts  World Development Movement World Wildlife Fund

GOALS:

 Ratification

Entry into force

Implementation

Policy guidelines

Level playing field

PREVENT:

Unilateral Action

Legal weaknesses

Water misgovernance

Conflicts

IWL ON THE GROUND MENA Shared Basins and Aquifers No agreement Agreement; although partial or not all-inclusive Agreement informed by IWL principles Nile Basin Jordan Basin Tigris-Euphrates Basin Asi-Orontes Basin Niger Basin Lake Chad Nubian Aquifer Disi Aquifer Majority of the transboundary aquifers Al-Kabir Al-Janoubi Basin

Nile Basin

Jordan Basin

Tigris-Euphrates Basin

Asi-Orontes Basin

Niger Basin

Lake Chad

Nubian Aquifer

Disi Aquifer

Majority of the

transboundary aquifers

Al-Kabir Al-Janoubi Basin

“ Mission unaccomplished” Agreement; although partial or not all-inclusive     Not all-inclusive No volumetric water allocations No provisions on information exchange Niger River / Lake Chad Agreements Unequal allocations “ Fake” joint management Constraints on Palestinian development of water resources (eg do not include Jordan River waters) “ Prior use” argument 1995 Oslo Water Regime (Israel/Palestine) Bilateral Agreement Deliberate (constructive) ambiguity Difficulties on implementation Destructive Ambiguity 1994 Israeli-Jordanian Water Agreement (Israel/Jordan) Complex negotiations No volumetric water allocations Treaty secession or not? Deliberate ambiguity No ratification or political commitment 2007 Nile Cooperative Framework Agreement (all Nile riparians) Bilateral agreement Volumetric water allocations Unequal allocations Colonial background “ Prior use” argument 1959 Agreement for the Full Utilisation of the Nile Waters (Egypt/Sudan) RELATED PROBLEMS EXAMPLES OF AGREEMENTS

Not all-inclusive

No volumetric water allocations

No provisions on information exchange

Unequal allocations

“ Fake” joint management

Constraints on Palestinian development of water resources (eg do not include Jordan River waters)

“ Prior use” argument

Bilateral Agreement

Deliberate (constructive) ambiguity

Difficulties on implementation

Destructive Ambiguity

Complex negotiations

No volumetric water allocations

Treaty secession or not?

Deliberate ambiguity

No ratification or political commitment

Bilateral agreement

Volumetric water allocations

Unequal allocations

Colonial background

“ Prior use” argument

Transboundary Aquifers - “Long way to go” STATUS: No Agreement in majority of transboundary MENA aquifers Only draft of Law of Transboundary Aquifers Limited achievements regarding regional cooperation PROBLEMS: “ Invisible” resource “ Pumping race” – over-abstraction Strong environmental impacts Process of political “silentisation” COOPERATION: Ongoing negotiations: Northwest Sahara Aquifer System, Nubian Sandstone Aquifer System, Basalt Aquifer (Jordan-Syria), Shallow Aquifer (Oman-UAE), Wajid Sandstone (Saudi Arabia-Yemen), Wasia-Biyadh/Mukallah Deep Aquifer (Oman-Yemen) No agreement  

STATUS:

No Agreement in majority of transboundary MENA aquifers

Only draft of Law of Transboundary Aquifers

Limited achievements regarding regional cooperation

PROBLEMS:

“ Invisible” resource

“ Pumping race” – over-abstraction

Strong environmental impacts

Process of political “silentisation”

COOPERATION:

Ongoing negotiations: Northwest Sahara Aquifer System, Nubian Sandstone Aquifer System, Basalt Aquifer (Jordan-Syria), Shallow Aquifer (Oman-UAE), Wajid Sandstone (Saudi Arabia-Yemen), Wasia-Biyadh/Mukallah Deep Aquifer (Oman-Yemen)

2002 Agreement on Al-Kabir Al-Janoubi River (Lebanon-Syria) Agreement informed by IWL principles Agreement is derived from relevant provisions of international law and, in particular, the United Nations Convention 

Participants will play the role of the diverse negotiatiors and external parties involved in the negotiations for a new Nile Treaty Discuss and reflect on the application of the UN Convention articles: EXERCISE 2: Nile Basin case – how to apply IWL? Which body will be responsible? Arbitration? Article 33: Settlement of disputes Mechanisms? How this relates to old and new hydraulic infrastructures? Articles 24, 25 and 26: Management and regulation How to include, guarantee and protect ecosystems? Which mechanisms can be used? How this relates to old and new hydraulic infrastructures? Articles 20, 21 and 23: Protection of ecosystems and the marine environment, prevention of pollution How to share data? What about prior notification? Which mechanisms to notify and inform? Which institution will supervise the process? Articles 8 and 9: General obligation to cooperate, regular exchange of data and information How to measure harm? Which are the obligations of upstream countries? What happens to “prior” uses? Article 7: Obligation not to cause serious Harm How to translate equitable and reasonable on the ground? Weight of each factor? How to define the water allocation of each of the 10 riparians? What occurs if new infrastructures are built? Articles 5 and 6: Equitable and reasonable utilization and participation and related factors Potential Nile Treaty UN Convention

Participants will play the role of the diverse negotiatiors and external parties involved in the negotiations for a new Nile Treaty

Discuss and reflect on the application of the UN Convention articles:

Which body will be responsible?

Arbitration?

Mechanisms?

How this relates to old and new hydraulic infrastructures?

How to include, guarantee and protect ecosystems?

Which mechanisms can be used?

How this relates to old and new hydraulic infrastructures?

How to share data?

What about prior notification?

Which mechanisms to notify and inform?

Which institution will supervise the process?

How to measure harm?

Which are the obligations of upstream countries?

What happens to “prior” uses?

How to translate equitable and reasonable on the ground?

Weight of each factor?

How to define the water allocation of each of the 10 riparians?

What occurs if new infrastructures are built?

Discuss and reflect on how to operationalise the Principle of Equitable and Reasonable Utilisation in the Nile River Basin: EXERCISE 2: Nile Basin case – how to apply IWL? 7 - The availability of alternatives, of comparable value, to a particular planned or existing use. 6 - Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; 5 - Existing and potential uses of the watercourse; 4 - The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; 3 - The population dependent on the watercourse in each watercourse State; 2 - The social and economic needs of the watercourse States concerned; SOME RELEVANT QUESTIONS: Weight of each factor? Future needs vs. Present uses? Existing vs. Potential uses? Impacts of water utilisation upstream – how to measure? Alternative water resources – within or outside the Basin? 1 - Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; Potential Nile Treaty FACTORS (Art. 6 UN Convention)

Discuss and reflect on how to operationalise the Principle of Equitable and Reasonable Utilisation in the Nile River Basin:

Nexus – Water, Law and Politics WATER LAW & POLITICS NEGOTIATIONS OF TRANSBOUNDARY WATER LEGAL AGREEMENTS ARE HIGHLY POLITICISED PROCESSES – Asymmetric Power Politics are determinant Contextual power is key for conclusion/delaying of agreements Equitable and reasonable utilisation is difficult to operationalise Negotiations on volumetric water allocations are highly problematic

NEGOTIATIONS OF TRANSBOUNDARY WATER LEGAL AGREEMENTS

ARE HIGHLY POLITICISED PROCESSES –

Asymmetric Power Politics are determinant

Contextual power is key for conclusion/delaying of agreements

Equitable and reasonable utilisation is difficult to operationalise

Negotiations on volumetric water allocations are highly problematic

Conclusion International Water Law Set of useful guidelines for transboundary water management ILW: A mean, not an end by itself Power Politics  International Water Law Power Politics  Negotiations & Political Commitment Law as a tool for conflict resolution/ prevention? 3 HYDROPOLITICAL COOPERATION 1 NEXUS WATER AND POLITICS

International Water Law

Set of useful guidelines for transboundary water management

ILW: A mean, not an end by itself

Power Politics  International Water Law

Power Politics  Negotiations & Political Commitment

Law as a tool for conflict resolution/ prevention?

3 - CONFLICT RESOLUTION AND COOPERATION Transboundary river basins: Conflict or/and Cooperation? Conflicts, diplomacy and deadlocks Transboundary cooperation – overcoming deadlocks? Main cooperative attempts in the MENA region Cooperation is as political as water EXERCISE 3: If I was a donor…

Transboundary river basins: Conflict or/and Cooperation?

Conflicts, diplomacy and deadlocks

Transboundary cooperation – overcoming deadlocks?

Main cooperative attempts in the MENA region

Cooperation is as political as water

Transboundary river basins: Conflict or Cooperation?  CONFLICT   COOPERATION  CONFLICT ? COOPERATION ? Reality is not Black & White ! Conflict and Cooperation Co-exist Mirumachi 2007 HOW? 

Diplomatic conflict, not war! Wolf et al 2003 Diplomatic, strong or mild verbal official hostility Conflict resolution: Political and diplomatic 

Typical conflictive situation Typical conflictive situation Riparian A Riparian B Deadlock DON’T Agree in positions and arguments No data-sharing No negotiations No political commitment No common projects No cooperation DO Securitise Use egoistic arguments Confidentiality of information Refuse concessions Play with time Threats

DON’T

Agree in positions

and arguments

No data-sharing

No negotiations

No political commitment

No common projects

No cooperation

DO

Securitise

Use egoistic arguments

Confidentiality of information

Refuse concessions

Play with time

Threats

Cooperation – Overcoming the deadlocks Deadlock COOPERATION How? Capacity- Building Information Sharing Applied Training Stakeholder Involvement Shared Vision Joint Projects Benefit- Sharing Legal and Institutional Frameworks Socio-econ. development River Basin Organisation (RBO)

Main cooperative attempts in the MENA region     ... JWC goal: the implementation of the water clauses of the Peace Treaty Continued in functions despite of conflicts between countries Several problems to disentangle ambguities embedded in the treaty Limited effectiveness Israeli–Jordanian Joint Water Committee (just Israel and Jordan) Currently no donors support projects not licensed through the JWC Goal: rational water resource management and IWRM JWC: decisions on water projects in te West Bank by consensus Presented as model of cooperation Criticism: domination dressed up as cooperation (Israel: Veto & licensing) Israeli–Palestinian Joint Water Committee (just aquifers, not Jordan River) UNESCO, Private Sector, Universities No cooperation at interstate level Civil society engagement Aims facilitating cooperation Goals: Capacity-building and institutional strengthening Euphrates-Tigris Initiative for Cooperation (not governmental, just civil society of 4 riparians) Tigris-Euphrates Basin United States, France, EU, the Netherland, Canada Database project Forum whereby infrastructure, research and negotiations are launched Small-scale projects (eg wastewater treatment) EXACT (3 riparians) Jordan Basin International Atomic Energy Agency, UNDP, GEF, UNESCO Goal: rational and equitable management of the NSAS In the first stages of cooperation (setting) Not yet legal and insitutional framework neither projects Nubian Sandstone Aquifer System Project (all 4 riparians) Nubian Aquifer World Bank, UNDP, Denmark, European Commission, France, Old organisation – since 1964 [Failed to prevent environmental catastrophe] Goal: regulation and planning of the uses of water and natural resources Still focusing primarily in surface water, and not groundwater Ambitious project of water diversion from Congo River to Lake Chad Lake Chad Basin Commission (5 riparians) (Algeria, Sudan and Libya not members) Lake Chad World Bank, UNDP, African Devel. Bank, Canada, European Commission, France, US One of the oldest intergovernmental in Africa (Convention signed in 1987) Goal: integrated water management and economic developemnt Shared Vision and several inestment projects Joint basin-wide hydrological monitoring system Active nvolvement of donors, but also civil society and environmentalists Niger Basin Authority (9 riparians) (Algeria is not member) Niger World Bank, UNDP, African Development Bank, FAO, GEF, Canada, Denmark, European Commission, Finland, France, Netherlands, Norway, Sweden, UK, Germany, Japan, Switzerland, US NBI – provisional cooperative mechanism (since 1999) Ambitious goals/ involves all 10 riparians / strong involvement of donors Shared Vision and Subsidiary Action programs Capacity-building and trust achieved Not yet a legal framework or projects on-the-ground Nevertheless, seen as a good model of cooperation Nile Basin Initiative (all 10 riparians) Nile Donors Main achievements Initiative Basin

JWC goal: the implementation of the water clauses of the Peace Treaty

Continued in functions despite of conflicts between countries

Several problems to disentangle ambguities embedded in the treaty

Limited effectiveness

Goal: rational water resource management and IWRM

JWC: decisions on water projects in te West Bank by consensus

Presented as model of cooperation

Criticism: domination dressed up as cooperation (Israel: Veto & licensing)

No cooperation at interstate level

Civil society engagement

Aims facilitating cooperation

Goals: Capacity-building and institutional strengthening

Database project

Forum whereby infrastructure, research and negotiations are launched

Small-scale projects (eg wastewater treatment)

Goal: rational and equitable management of the NSAS

In the first stages of cooperation (setting)

Not yet legal and insitutional framework neither projects

Old organisation – since 1964 [Failed to prevent environmental catastrophe]

Goal: regulation and planning of the uses of water and natural resources

Still focusing primarily in surface water, and not groundwater

Ambitious project of water diversion from Congo River to Lake Chad

One of the oldest intergovernmental in Africa (Convention signed in 1987)

Goal: integrated water management and economic developemnt

Shared Vision and several inestment projects

Joint basin-wide hydrological monitoring system

Active nvolvement of donors, but also civil society and environmentalists

NBI – provisional cooperative mechanism (since 1999)

Ambitious goals/ involves all 10 riparians / strong involvement of donors

Shared Vision and Subsidiary Action programs

Capacity-building and trust achieved

Not yet a legal framework or projects on-the-ground

Nevertheless, seen as a good model of cooperation

In which Basin/Aquifer would I invest? In those already cooperating, those starting cooperative initiatives, or those displaying no cooperation? And Why? In which of these fields of activity (or others) would I engage giving financial support? And Why? EXERCISE 3: If I was a donor… Capacity- Building Information Sharing Applied Training Stakeholder Involvement Shared Vision Joint Projects Benefit- Sharing Legal and Institutional Frameworks

In which Basin/Aquifer would I invest? In those already cooperating, those starting cooperative initiatives, or those displaying no cooperation? And Why?

In which of these fields of activity (or others) would I engage giving financial support? And Why?

Cooperation is as political as water BASIN/ AQUIFER Multiple stakeholders, positions, decision-making layers, strategies, external actors, ... Multilateral Donor Bilateral Donor Civil Society Riparian C Riparian B Riparian A

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