Legal Framework of Transboundary Water Management

Raya Marina Stephan, International consultant and water law expert

The WANA region is the most arid region in the world, and suffers from a considerable lack of freshwater availability. Water quality is also emerging as an important issue and is of growing concern. And very importantly, a main characteristic of the water resources in the WANA region, whether surface or groundwater resources, is that they are often shared between two or more States. Some of the shared groundwater resources is found in non-recharging aquifers such as the Nubian Sandstone aquifer system (Chad, Egypt, Libya and Sudan).

The region faces here a major challenge. States sharing a water resource, can be directly affected by decisions and developments made in the riparian Sates. Water resources that cross national borders place the countries sharing the resource in a state of interdependence. The water dependence of some countries in the WANA region is extremely high: Egypt (water dependence ratio 97%), Syria (80%) and Jordan (23%) rely almost exclusively on transboundary water resources emanating from outside their borders. With no doubts, it is clear that the sustainable management of a shared water body has to involve all riparian countries. Cooperation in managing shared water resources in a water scarce region is imperative in order to ensure resource preservation and its sustainable development. Both water quantity and quality aspects have regional dimensions when the water resources are shared.

The region already experiences some cooperation modalities, some formalized by inter-state agreements, some less formally set up through technical committees, experts meetings, or joint projects. However, numerous shared water basins are still managed in a unilateral manner by the concerned states, without any cooperative effort. In fact, the region has a striking absence of inclusive and comprehensive inter-State water agreements on its most significant transboundary waters. In the few cases where agreements exist, the cooperation modalities are often limited to exchange of data and developing models and information systems. Actual joint management of the shared water resource is still lacking. Existing arrangements are generally not inclusive in their scope and do not deal with optimization or planning, nor do they have at their core established principles of international water law.

Therefore, much effort still needs to be exerted before the region’s shared water resources can be beneficially used sustainably, equitably, and in accordance with the principles of international water law. This is in contrast to other regions where international relations have evolved to a point that initiatives to establish formal, inclusive legal frameworks can be articulated. It is the case in Europe, and in a certain way in the Southern African Development Community region. In the WANA region, the lack of international agreements reflects in large part the weak political and multilateral engagement among the States sharing the water, which are still considering water resources, even if they are shared, as a national issue.

The WANA region can engage towards an improvement in the situation of its shared water resources by integration the principles of international water law, by following other regional

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examples which have adopted a framework for shared waters, and by enforcing its national capacities in the management of water.

I. International global frameworks for shared water resources: guiding tools

At the global level, two international instruments were adopted to provide a legal framework for the management of shared water resources. The first instrument is the UN Convention on the Law of Non-navigational Uses of International Watercourses (1997) (UN Watercourse Convention). This Convention is not in force yet because it has not gathered yet the necessary number of ratifications (35) needed. The Convention has codified the core principles of International Water Law, which are now part of customary international law. These principles are the equitable and reasonable use and the obligation not to cause harm. The UN Watercourse Convention applies to international watercourses. In this Convention, a watercourse is defined as a “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus” (article 2§a). Therefore the Convention applies to shared surface water bodies, and to the related groundwaters flowing into a common terminus. The Convention is already recognized as an authoritative instrument.

In December 2008, the UN General Assembly adopted, Resolution A/RES/63/124 on the Law of Transboundary Aquifers. The Resolution is a non-binding text. However, it encourages the states concerned to make appropriate arrangements for the proper management of their transboundary aquifers, based on the principles of the draft articles prepared by the UN International Law Commission on the topic and included in its annex. These draft articles formulate principles for the management of transboundary aquifers such as the equitable aand reasonable utilization and the no harm rule, with specific adaptations to aquifers. Rather than an end, the resolution represents a first step towards the main objective –that is, “the development, utilization, conservation, management and protection of groundwater resources in the context of the promotion of the optimal and sustainable development of water resources for present and future generations” 1.It can already be considered by States as a reference and as guidelines regarding their transboundary aquifers. The Resolution offers therefore a reference framework for States regarding shared aquifers.

II. Regional examples: Europe and SADC

The European continent hosts the two most achieved regional instruments regarding transboundary waters in general, applicable in the case of transboundary aquifers in a wide manner. These are the UN ECE2 Convention on the protection and Use of Transboundary Watercourses and International Lakes (1992)3 (UN ECE Water Convention) and the EU Directive 2000/60/EC establishing a framework for Community action in the field of water policy adopted 20 October 2000 (in short EU Water Framework Directive or WFD)4.

1 Draft articles on the law of transboundary aquifers, preambular paragraph 7.2 Economic Commission for Europe3 Available at http://www.unece.org/env/water/text/text.htm4 Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:327:0001:0072:EN:PDF

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The UN ECE Water Convention entered into force in 1996, and has been ratified by thirty-eight States5. It applies to all transboundary waters, which are defined as “any surface or ground waters which mark, cross or are located on boundaries between two or more States” (article 1§1). The Convention has adopted a wide definition of transboundary waters; it applies therefore without any restriction to all aquifers as long as they are transboundary. The Convention is guided by the equitable and reasonable use principle, the precautionary principle and the sustainable development. It includes provisions related to procedural rules giving specific obligations to Riparian countries such as establishing and implementing joint programmes for monitoring. The Convention has served as a reference to numerous agreements in Europe such as the Danube River Protection Convention (1994), the Convention on the Protection of the Rhine (1999), or the Convention on the protection, utilization, recharge and monitoring of the Franco-Swiss Genevese aquifer (1st January 2008).

The Southern African Development Community adopted in 2000 the Revised Protocol on Shared Watercourses6. The Protocol is based on the UN Watercourse Convention, and includes the same definition of a watercourse than the UN Convention. Therefore the Protocol in the same way as the UN Watercourse Convention applies to transboundary aquifers in a limited way. However there has been an awareness in the Southern African Region towards the necessity of improving the status of transboundary aquifers, which is still neglected. The 2009 SADC Multi-Stakeholder Dialogue held in 2009 focused totally on groundwater. It resulted from this Dialogue that it must be a high priority to generate a complete understanding of a transboundary aquifer with adequate groundwater data and information to allow for the implementation of cooperative arrangements, either as part of existing agreements on surface waters or through other modalities.

At a regional level, among the WANA countries, the Arab Ministerial Water Council (AMWC) identified shared water resources as a regional priority, and passed a resolution during its second session in July 2010 to:

“Invite the Center of Water Studies and Arab Water Security and the United Nations Economic and Social Commission for Western Asia (ESCWA), in coordination with the Arab Center for the Studies of Arid Zones and Dry Lands (ACSAD) and the Stockholm International Water Institute (SIWI) to prepare a draft legal framework on shared waters within the Arab Region for its discussion during the next meeting of the Technical Scientific Advisory Committee of the Ministerial Council in January 2011.”

Arab Ministerial Water Council, Session 2, Resolution 4, Item 3 (AMWC, 2010)7

5 The status of the ratification and the Parties are available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5&chapter=27&lang=en (last accessed 25 January 2011)6 Available at http://www.sadc.int/index/browse/page/159 . The Revised protocol entered in force in 2003. The State Parties are: Botswana, Lesotho, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia.7 Klingbeil R. & Hamdi M.I., Transboundary Water and Transboundary Aquifers in the Middle East:Opportunities for Sharing a Precious Resource, paper presented for the Conference Transboundary Aquifers: Challenges and new directions, December 2010.

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The AMC is engaging towards the adoption of a regional legal instrument for shared waters within the Arab Region. The initiative is still at its start. When it finally reaches a mature stage and is regionally adopted, it could then be extended to neighboring countries of the Arab region, applicable to shared waters between an Arab State and its neighbor.

III. Enforcing the national settings and capacities for the management of water

The obstacles for proper cooperation on shared water resources come at first place from the national level. At the national level, the institutions in charge of water resources are often numerous and lack a clear mandate which leads to overlaps and gaps in responsibilities. There are often no local institutions to manage water basins. Therefore, it is not clear what institution or agency is in charge of the water body shared with a neighboring country.

The national legal frameworks on water are often not comprehensive on the main issues regarding the management of water resources. These frameworks are important since the shared water body is managed at first at the national level. The significance of these domestic frameworks lies also in the fact that in case of an agreement with other riparian countries the decision taken at the transboundary level would need to be compatible with and translatable to the national legislation. Improving the governance of the shared water resource locally at the domestic level is a main issue for consideration.

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