A Multidisciplinary Approach for A Multidisciplinary Approach for Sharing Transboundary GroundwaterSharing Transboundary Groundwater

A Case Study from Palestine and IsraelA Case Study from Palestine and Israel

Fadia Fadia DaibesDaibes--MuradMurad, PhD, PhDWater Law and Policy SpecialistWater Law and Policy Specialist

ContentsContentsIntroductionIntroductionSetting the context for Transboundary Groundwater: Problems and Setting the context for Transboundary Groundwater: Problems and Challenges Challenges The Need for Modern Development of Transboundary Groundwater The Need for Modern Development of Transboundary Groundwater LawLawNational Groundwater Regulations and Relevance at international National Groundwater Regulations and Relevance at international levellevelThe Applicable LawThe Applicable Law

Codification and progressive developmentCodification and progressive developmentTransboundary Groundwater Law in State PracticeTransboundary Groundwater Law in State Practice

Operationalization of the LawOperationalization of the LawInformal StatesInformal States’’ CooperationCooperationThe Mountain Aquifer Case StudyThe Mountain Aquifer Case StudyThe Multidisciplinary ApproachThe Multidisciplinary Approach

Transboundary Groundwater TGWTransboundary Groundwater TGW

Comprehensive cooperative approaches Comprehensive cooperative approaches that govern the utilization, development that govern the utilization, development and protection of Transboundary and protection of Transboundary Groundwater are still lacking. Groundwater are still lacking. Lessons to be learnt from international law Lessons to be learnt from international law and best state practiceand best state practiceHow to achieve an integrative mutually How to achieve an integrative mutually beneficial arrangement for nations sharing beneficial arrangement for nations sharing Transboundary Groundwater.Transboundary Groundwater.

Setting the ContextSetting the Context

Groundwater in national context is still not Groundwater in national context is still not comprehensively understood or regulatedcomprehensively understood or regulatedThe problem is intensified in The problem is intensified in transboundary contextstransboundary contextsFurther intensification in stressed political Further intensification in stressed political environmentsenvironments

Hydrogeological ChallengesHydrogeological ChallengesFrom a hydrogeologic perspective a better understanding ofFrom a hydrogeologic perspective a better understanding of

hydraulic parameters;hydraulic parameters;the boundaries of an aquifer before beginning to assess the boundaries of an aquifer before beginning to assess accurately the quantity and quality of water it containsaccurately the quantity and quality of water it contains

This requiresThis requiresThe establishment of an information base that embraces The establishment of an information base that embraces comprehensive data on general groundwatercomprehensive data on general groundwatercomprehensive and credible monitoring system that can comprehensive and credible monitoring system that can generate the type of information and data needed.generate the type of information and data needed.The monitoring system must be supplemented by assessment The monitoring system must be supplemented by assessment systems capable of processing and transforming the data into systems capable of processing and transforming the data into reasonable and usable information for the enactment of the reasonable and usable information for the enactment of the responsive rules and regulationsresponsive rules and regulationsThe development of comparable monitoring and assessment The development of comparable monitoring and assessment systems in transboundary groundwater states sharing the same systems in transboundary groundwater states sharing the same aquifer is essential (Harmonization)aquifer is essential (Harmonization)

Legal ChallengesLegal Challenges

from a legal perspective, the issues are mainly from a legal perspective, the issues are mainly related to therelated to the

identification of the scope and description of the identification of the scope and description of the groundwater resourcesgroundwater resourcesidentification of the rules and principles that govern identification of the rules and principles that govern the allocation between uses at the national levelthe allocation between uses at the national levellegal entitlements of States at the international levellegal entitlements of States at the international levelimplementation of these entitlements including the implementation of these entitlements including the development of procedures, mechanisms and development of procedures, mechanisms and institutions that ensure compliance and enforcement.institutions that ensure compliance and enforcement.

National Groundwater Regulation and National Groundwater Regulation and Relevance at International LevelRelevance at International Level

The analysis of illustrative national GW regulations finds The analysis of illustrative national GW regulations finds that there are some common denominators in the that there are some common denominators in the relevant state practice at the national level in selected relevant state practice at the national level in selected regionsregions--those could be summarized in:those could be summarized in:

the adoption of the the adoption of the ““River BasinRiver Basin”” concept, as it has been concept, as it has been employed in national regulations since more than 70 years with employed in national regulations since more than 70 years with the aim to achieve an integrated water resources management the aim to achieve an integrated water resources management the permitting or licensing systemsthe permitting or licensing systemsthe declaration of protection zones the declaration of protection zones the economic and financial instruments and incentives and the economic and financial instruments and incentives and the development of monitoring, assessment and control systemsthe development of monitoring, assessment and control systems

In a transboundary contextIn a transboundary context

Decisions and responses require two or more Decisions and responses require two or more States to undertake, with the possibly that two or States to undertake, with the possibly that two or more legal regimes are involvedmore legal regimes are involvedThe envisaged problems at this preliminary The envisaged problems at this preliminary stage between national and transboundary stage between national and transboundary groundwaters lie in the willingness of States to groundwaters lie in the willingness of States to accept that the notions of groundwater accept that the notions of groundwater regulations that apply on their domestic regulations that apply on their domestic groundwaters can be as well adapted at the groundwaters can be as well adapted at the international levels.international levels.

TGW Law and the Need for TGW Law and the Need for Modern DevelopmentModern Development

Existing obstacles to the development of transboundary Existing obstacles to the development of transboundary groundwater lawgroundwater law

Concerns over sovereigntyConcerns over sovereigntycomplexity of the hydrological regimecomplexity of the hydrological regimeIncreased dependency on groundwaterIncreased dependency on groundwater

State practice is also lacking State practice is also lacking Limited agreements deal with groundwater as an Limited agreements deal with groundwater as an issue that requires a special legal regimeissue that requires a special legal regimeStates are reluctant to conclude treaties that explicitly States are reluctant to conclude treaties that explicitly address their transboundary groundwateraddress their transboundary groundwater

The Law Governing TGWThe Law Governing TGW

Codification and Progressive Development of Codification and Progressive Development of the Law.the Law.1997 UN Watercourses Convention, not 1997 UN Watercourses Convention, not ratified yet, Embodies Principles of customary ratified yet, Embodies Principles of customary international Law, equitable and reasonable international Law, equitable and reasonable utilization and the no significant harm. utilization and the no significant harm. Provides guidanceProvides guidanceMany efforts by the International Law Many efforts by the International Law Association (Helsinki Rules) and the Expert Association (Helsinki Rules) and the Expert Group on the Group on the BellagioBellagio Draft TreatyDraft Treaty

The Analytical FrameworkThe Analytical Framework

Scope and Use of TermsScope and Use of TermsSubstantive RulesSubstantive RulesProcedural RulesProcedural RulesInstitutional Mechanisms Institutional Mechanisms Dispute SettlementDispute Settlement

Applicable LawApplicable Law

Scope: (integrated approach) including Scope: (integrated approach) including confined aquifers (disconnected)confined aquifers (disconnected)Substantive RuleSubstantive Rule

Equitable and Reasonable UtilizationEquitable and Reasonable UtilizationThe No harm principle is subordinate The No harm principle is subordinate

Procedural RulesProcedural Rules-- Mainly on CooperationMainly on Cooperation*Glossary of terms: there is a need for *Glossary of terms: there is a need for

agreement on the terms used and their agreement on the terms used and their definitions.definitions.

Pillars for CooperationPillars for Cooperation

Duty to Exchange InformationDuty to Exchange InformationDuty to give Prior NotificationDuty to give Prior NotificationDuty to Consult and NegotiateDuty to Consult and NegotiatePeaceful means for Dispute SettlementPeaceful means for Dispute Settlement

State PracticeState PracticeSurvey of 420 treaties (terms used treaties, agreement, exchangeSurvey of 420 treaties (terms used treaties, agreement, exchange of of notes, protocol, convention)notes, protocol, convention)70 treaties have explicit or implicit (water system, river basin70 treaties have explicit or implicit (water system, river basin, spring, , spring, well..etcwell..etc.) reference to transboundary groundwater.) reference to transboundary groundwater32 in Europe32 in Europe20 in Africa (10 in Southern Africa 20 in Africa (10 in Southern Africa SubregionSubregion ((KomatiKomati, Zambezi, , Zambezi, Okavango) 6 in Central Africa Okavango) 6 in Central Africa SubregionSubregion ( Niger and Chad)1 in ( Niger and Chad)1 in Western Africa (Gambia) 1 in South West (Western Africa (Gambia) 1 in South West (KageraKagera) and 1 for all ) and 1 for all Africa, Africa, 6 in the Middle East (6 treaties: 2 between Israel and the 6 in the Middle East (6 treaties: 2 between Israel and the PLO(GroundwaterPLO(Groundwater), 1 between Israel and ), 1 between Israel and Jordan(YarmoukJordan(Yarmouk Basin), 1 Basin), 1 between Syria and Jordan (between Syria and Jordan (YarmoukYarmouk River Basin) and 1 between River Basin) and 1 between Syria and Lebanon (Al Syria and Lebanon (Al ‘‘AsiAsi River)River)8 between the United States and Mexico8 between the United States and Mexico5 in Asia: ( 3 in the Mekong), 2 Central Asia ( 5 in Asia: ( 3 in the Mekong), 2 Central Asia ( AralAral Sea, Sea, SyrSyr DaryaDarya, , AmuAmu DaryaDarya))

Operationalization of the Law: the Operationalization of the Law: the interaction with Scienceinteraction with Science

Geographic factorsGeographic factorswhat is total surface area of the aquifer?what is total surface area of the aquifer?

What is the portion of the surface area in each What is the portion of the surface area in each watercourse states?watercourse states?Topographic information (elevation data) Topographic information (elevation data) which could be modeled to yield derived which could be modeled to yield derived topographic information such as slope, topographic information such as slope, watershed, drainage, landform.watershed, drainage, landform.

Operationalization..Operationalization..Hydrographic factors Measurements and Hydrographic factors Measurements and description of the IGWdescription of the IGW

Hydrogeological mapsHydrogeological mapsWhat is the water level, trends, fluctuationsWhat is the water level, trends, fluctuationsRecharge/DischargeRecharge/Discharge

Hydrologic factors :Hydrologic factors :What is the rainfall, rates and spatial distribution?What is the rainfall, rates and spatial distribution?InfiltrationInfiltrationContribution of GW to stream flow and relationships Contribution of GW to stream flow and relationships with wetlands and lakes ecosystemswith wetlands and lakes ecosystemsWater balance dataWater balance dataBearing Zone: Is it confined/unconfinedBearing Zone: Is it confined/unconfined

Operationalization..Operationalization..Physical links with surface waterPhysical links with surface waterGW flow rates and directionsGW flow rates and directionsNatural recharge rates and spatial distributionNatural recharge rates and spatial distributionGW usage rates an trends GW usage rates an trends What is the effective thickness and extent of the What is the effective thickness and extent of the aquiferaquiferWhat is the aquifer What is the aquifer storativitystorativity and transmissivityand transmissivityBoundary conditions of the Boundary conditions of the aquifers(howeveraquifers(however by their by their nature they are dynamic and changing over time and nature they are dynamic and changing over time and space)space)Safe YieldSafe Yield

Operationalization..Operationalization..Meteorological/Meteorological/ClimatologicalClimatological factors(Dryfactors(Dry V. Wet V. Wet Season):Season):

PrecipitationPrecipitationTemperaturesTemperaturesEvaporation/Evaporation/EvapotranspirationEvapotranspiration

The Social and Economic needs of IGWThe Social and Economic needs of IGWWhat are the IGW used for?What are the IGW used for?What is the degree of dependence on the IGW?What is the degree of dependence on the IGW?Are the uses financially feasible and economically Are the uses financially feasible and economically efficient?efficient?Are long term uses studied and predicted?Are long term uses studied and predicted?

Operationalization..Operationalization..

The population dependent on the IGW in The population dependent on the IGW in each WCSeach WCSThe effects of the use or uses of the IGW The effects of the use or uses of the IGW in one WCS on the otherin one WCS on the otherExisting and potential uses of the IGW Existing and potential uses of the IGW (risks of depletion) knowledge of the (risks of depletion) knowledge of the projected abstractions their magnitude and projected abstractions their magnitude and durationduration

Operationalization..Operationalization..Conservation: Conservation:

What water conservation practicesWhat water conservation practicesAre these measures financially practicable Are these measures financially practicable

DevelopmentDevelopment: projects or programmes undertaken by : projects or programmes undertaken by the WCS to obtain the benefits from a WC or to increase the WCS to obtain the benefits from a WC or to increase the benefits that may be obtained the benefits that may be obtained therefromtherefrom..Economy of use:Economy of use: avoidance of unnecessary waste of avoidance of unnecessary waste of waterwaterAvailable alternatives:Available alternatives: whether those alternatives are whether those alternatives are of a value that corresponds to a particular planned or of a value that corresponds to a particular planned or existing use (corresponding=equivalent in value)existing use (corresponding=equivalent in value)

Informal StatesInformal States’’ CooperationCooperation

In the absence of formal treaties technical In the absence of formal treaties technical cooperative frameworks are establishedcooperative frameworks are establishedAfrica NSAS (confined aquifer system)Africa NSAS (confined aquifer system)Europe (unregulated) connected aquifers Europe (unregulated) connected aquifers e.g. e.g. VechteVechte catchment area between the catchment area between the Netherlands and Germany. To build Netherlands and Germany. To build knowledge and awareness on shared knowledge and awareness on shared aquifersaquifersMiddle East (multiMiddle East (multi--lateral cooperation)lateral cooperation)

The Case StudyThe Case StudyMountain Aquifer Shared Mountain Aquifer Shared

Between Israel and Between Israel and PalestinePalestine

Problems in the Case StudyProblems in the Case StudyInequitable UtilizationInequitable UtilizationAsymmetry among the PartiesAsymmetry among the PartiesPartiesParties’’ Emphasis on PositionsEmphasis on PositionsResistance to International Law Resistance to International Law Relevance of Signed Agreements: A Mutual Relevance of Signed Agreements: A Mutual Benefit?Benefit?Lack of Vision on CooperationLack of Vision on CooperationPalestinePalestine’’s Water Institutions and Good s Water Institutions and Good GovernanceGovernanceLack of Donor CoordinationLack of Donor Coordination

A Progressive ApproachA Progressive ApproachMutual genuine acknowledgement of the need for a Mutual genuine acknowledgement of the need for a common base in the interest of the international water common base in the interest of the international water resourcesresourcesAgree on the vision to establish basis for cooperative Agree on the vision to establish basis for cooperative development and the implementation of common development and the implementation of common projects and plansprojects and plansThe Palestinians and Israelis could begin with The Palestinians and Israelis could begin with an informal arrangement that demonstrates an informal arrangement that demonstrates tangible benefits and progresstangible benefits and progress, , they could garner the national support needed to they could garner the national support needed to enter into more formal arrangements.enter into more formal arrangements.

The Recommended Steps The Recommended Steps

Identify the ProblemIdentify the ProblemAgree on Interests and Not PositionsAgree on Interests and Not PositionsCreate Options for Mutual BenefitsCreate Options for Mutual BenefitsJoint Assessment of Legal Entitlement Joint Assessment of Legal Entitlement from the Mountain Aquiferfrom the Mountain AquiferCollaboration and Joint ProjectsCollaboration and Joint ProjectsThe Role of International CommunityThe Role of International Community

Considering Considering AssymetryAssymetry

Agree on how to reduce the asymmetry Agree on how to reduce the asymmetry between the parties? Data, knowledge, between the parties? Data, knowledge, developmentdevelopment

Degree and Intensity of Cooperation (pilot Degree and Intensity of Cooperation (pilot projects)projects)Committees needed for the implementationCommittees needed for the implementation

Legal EntitlementsLegal Entitlements

Jointly assess the water situationJointly assess the water situationIdentify Basic Human NeedsIdentify Basic Human NeedsSocial and Economic NeedsSocial and Economic NeedsAlternative Resources of comparable valueAlternative Resources of comparable valueConservation and Efficiency MeasuresConservation and Efficiency Measures•• Protection of aquifers from depletion and pollutionProtection of aquifers from depletion and pollution•• Apply the same standardsApply the same standards•• Joint monitoring and assessmentJoint monitoring and assessment

Institutionalization of the Institutionalization of the CooperationCooperation

Establish the appropriate institutions at the Establish the appropriate institutions at the various stages of cooperationvarious stages of cooperationAt the early stages only technical committees At the early stages only technical committees are required ensuring adequate communication are required ensuring adequate communication with the government. The consent from the with the government. The consent from the government on their operation is vitalgovernment on their operation is vitalAt later stages a different hierarchy institutions At later stages a different hierarchy institutions are needed with more formal representationare needed with more formal representation

Sustainability of the CooperationSustainability of the Cooperation

Prepare plans for alternative and new water Prepare plans for alternative and new water resourcesresourcesOptions for desalination, wastewater Options for desalination, wastewater treatment and import of water (feasibility treatment and import of water (feasibility analysis)analysis)

Seek the aid of an outsider from a third Seek the aid of an outsider from a third country or from international organizations country or from international organizations like the UN to objectively assess the like the UN to objectively assess the problemsproblems

Treaty FormulationTreaty Formulation

Identify and Agree on the scope/problemsIdentify and Agree on the scope/problemsWhich groundwater aquifers are to be Which groundwater aquifers are to be considered?considered?

Glossary of TermsGlossary of TermsIdentify the Hydrological Management UnitIdentify the Hydrological Management UnitSubstantive RulesSubstantive RulesProcedural Rules and Dispute SettlementProcedural Rules and Dispute Settlement

ConclusionsConclusionsThe modern development of the law in the field of The modern development of the law in the field of transboundary groundwater demonstrates an increased transboundary groundwater demonstrates an increased awareness of the current and emerging water crisesawareness of the current and emerging water crisesThis development, however, has not yet triggered, at This development, however, has not yet triggered, at least in the area of the case studies, the conclusion of least in the area of the case studies, the conclusion of legally binding agreements concerning shared legally binding agreements concerning shared transboundary groundwater.transboundary groundwater.states appear rarely to dedicate special attention to the states appear rarely to dedicate special attention to the regulation of their transboundary groundwater regulation of their transboundary groundwater (connected).(connected). It is also evident that such resources, if It is also evident that such resources, if included within the scope of international arrangements, included within the scope of international arrangements, are treated similarly to surface water. are treated similarly to surface water. Confined transboundary aquifers remain formally Confined transboundary aquifers remain formally unregulated. Such waters, and the laws governing their unregulated. Such waters, and the laws governing their utilization, are currently under study and review by the utilization, are currently under study and review by the ILC.ILC.

ConclusionsConclusionsThe fundamental rule governing the utilization of The fundamental rule governing the utilization of connected transboundary groundwater is the connected transboundary groundwater is the equitable and reasonable utilization, which equitable and reasonable utilization, which includes the factor related to the degree of harm. includes the factor related to the degree of harm. In the Middle East, where the transboundary In the Middle East, where the transboundary water resources are highly disputed, the current water resources are highly disputed, the current prospects for concluding obligatory prospects for concluding obligatory commitments relating to the shared commitments relating to the shared transboundary groundwaters are bleak transboundary groundwaters are bleak Informal regional cooperation is considered to Informal regional cooperation is considered to be more viable and preferable.be more viable and preferable.

ConclusionsConclusions

Establish the appropriate institutions at the Establish the appropriate institutions at the various stages of cooperation various stages of cooperation At the early stages only technical committees At the early stages only technical committees are required ensuring adequate communication are required ensuring adequate communication with the government. The consent from the with the government. The consent from the government on their operation is vitalgovernment on their operation is vitalAt later stages a different hierarchy institutions At later stages a different hierarchy institutions are needed with more formal representationare needed with more formal representation