On May 21, 1997, the United Nations General Assembly issued Resolution 51/229, approving the International Convention on the Use of Watercourses for Non-Navigational Purposes. One hundred and three countries voted in favour of the agreement, and only three (Burundi, Turkey and China) voted against it, with twenty-seven abstentions.
The Convention is divided into seven chapters, consisting of 37 articles. The main areas covered by the Convention include the definition of the term watercourse, watercourse agreements, equitable and reasonable utilization, the obligation not to cause significant harm, notification of planned measures, protection, conservation and management, and the settlement of disputes can arise.
Since the United Nations General Assembly passed its resolution, this convention has governed the use, protection and management of international watercourses. In May 2014, the required thirty-five instruments of ratification, acceptance and approval of the Convention were completed.
This study touches on some of the new concepts in this agreement that came to light after many years of delicate and complex discussions between the various parties that drafted it. It will be pointed out how Lebanon can benefit from this agreement.
The history of the agreement and its main features
There were no specific laws in the field of states’ rights to water, but rather a set of principles and norms that later became a source for resolving disputes related to the water issue.
The absence of a clear and accurate international legal source has led to a lack of progress in negotiations regarding the outstanding water issues in the Middle East. In every problem, the parties refer to the norms that are in their favour. For example, the Tigris and Euphrates rivers, where the Arab countries considered these rivers as international rivers whose water must be shared, while Turkey was arguing with the logic of national sovereignty because it is the country of the source, and it considered the two rivers to cross the border.
The United Nations International Law Commission adopted a reading of a draft international convention on the use of international watercourses for non-navigational purposes in 1994. It was made up of more than 20 articles whose objectives were to define and clarify some points that were not clear in the purely legal sense in international agreements.
The International Law Commission had difficulty in drafting the law and this was evident in the long period of time to reach a final draft of the Convention. The Committee faced difficulties in defining the terms international watercourses, trans-boundary groundwater, existing watercourse agreements and their relation to this international agreement, and the relationship between the principle of fair and reasonable use and the principle of the obligation not to cause any harm.
The definition of the international watercourse has been established and the principle of notification has been defined when projects are to be implemented on the watercourse in the event that they may result in harm to other watercourse countries, and in the event of opposition by one of these countries, they enter into negotiations with the aim of reaching an agreement.
The agreement is considered complementary to the bilateral or regional agreements that regulate the uses of shared waters, and it is not a substitute for it.
It can be considered a framework agreement because it deals with some basic procedural aspects and a few substantive aspects. As for the small details, it is left to the riparian states to formulate them in bilateral agreements that take into account the specific characteristics of the watercourse.
The Convention aims to ensure the use, development, conservation, management and protection of international watercourses and to promote their optimal and sustainable use.
Article 3 indicates that the Convention does not affect the rights or obligations of a watercourse state arising from agreements in force. However, the article requires the parties to consider, when necessary, how these agreements conform to the basic principles of the international agreement. In addition, the article states that if some, but not all, of a particular international watercourse state are parties to an agreement, nothing in such agreement shall affect the rights and obligations of watercourse states that are not parties to it under this agreement.
Thus, the Convention attempts to reconcile the right of states to conclude agreements with the equality of the right of other riparian states to the common watercourse.
Article 5 of the Convention states the right of each watercourse state to make use of the international watercourse in its territory in an equitable and reasonable manner. States are obligated to use and develop an international watercourse with a view to optimizing and obtaining benefits from it, taking into account the interests of the watercourse States concerned, in a manner consistent with its adequate protection.
Article 6 explains specific factors and circumstances that should be taken into account in determining the concept of equitable and reasonable utilization. The Convention also addresses, in Article 7, the issue of the obligation not to cause significant harm to other watercourse States.
It is difficult to agree on which of the two rules (equitable and reasonable utilization or not causing significant harm). This preoccupied the International Law Commission throughout its work on the Convention, and each rapporteur dealt with this issue differently, either by equating the two principles or by subordinating one to the other. The lower riparian states tend to prefer the no-harm rule, because this rule protects existing uses from the effects of the activities of the upstream states. In contrast, the upper riparian states tend to prefer the principle of equitable and reasonable utilization, because it allows more room for states to benefit from their share of the watercourse through activities that may affect the states located downstream.
Some experts in international water law believe that the Convention has made the obligation not to cause significant harm subject to equitable and reasonable utilization.
The agreement also addressed the principle of prior notification, and detailed in several articles the duties of the state that intends to establish the project to notify the rest of the riparian states and provide them with information related to the project, including the environmental assessment report. It must be clarified that the obligation to notify applies to all states, whether they are downstream or upstream. The agreement also dealt with the issue of protecting the environment of the international watercourse and preventing, reducing and combating pollution.
The agreement concluded with a lengthy article on the methods of settling disputes. It includes negotiation at the request of one of the parties, or the good offices, mediation or conciliation of a third party, or the use by those parties of any institutions of a common watercourse that the parties have established, or they agree to submit the dispute to arbitration, or to the International Court of Justice.
These are all methods up to the parties to the conflict to choose between them. However, the agreement obliges the parties in the event of their failure to agree on a means of resolving the dispute, such as submitting that dispute, at the request of any party, to an impartial fact-finding committee. The agreement details the work procedures of the impartial committee, and the committee decides to adopt its report by a majority of votes.
At first, the majority of Arab countries agreed to the agreement, while five countries were absent: Iraq, Lebanon, Mauritania, Somalia and Comoros. Egypt abstained from voting, and it was the only Arab country to take that position because it believed that the agreement did not clearly protect historical rights because of its focus on the principle of equitable and reasonable utilization.
How Lebanon can benefit from the international agreement
The agreement will help protect Lebanon’s rights from attempts by Israel (which abstained from voting in favour of the agreement) to control as much of waters as possible.
Based on the figure shown, Israel has water ambitions, especially since the majority of its water use goes to agriculture (more than 2 billion m3).
Before diving into the details of Lebanon benefiting from the international agreement, we have to take a look at some striking numbers.
These figures are issued by the Lebanese Ministry of Water Resources. The amount of rain and snow falling on Lebanese territory is 9700 million cubic meters per year, and the following is lost from this amount of rain:
5070 million m3 by evaporation
600 million m3 seepage into the ground
415 million m3 to Syria through the Orontes (Assi) River
95 million m3 to Syria through the Nahr al-Kabir al-Shamali
140 million m3 to Palestine through the Hasbani River
Thus, the net amount that Lebanon can use
9700-(5070 +600+415+95+140) = 3375 million m3
With regard to Lebanon’s right to the quantity of water, there is no text in international law that gives countries a specific percentage of water. Rather, the law sets general principles that all countries benefiting from a single watercourse must observe, and leave it to the experts, whether they are from the countries directly concerned or from the United Nations, in order to reach a common understanding, just as it is proposed on the Wazzani River issue, because the armistice agreement governs the relationship between Lebanon and Israel.
The dispute over water has existed for a long time between Palestine and its neighboring countries, and it is based on how to exploit the Jordan River. In 1953, the United Nations put in place a project to share the waters of the Jordan River, but unfortunately it did not give Lebanon a drop of it, and then the Arab League responded to it with another project, Lebanon participated in its development, taking a share of 35 million cubic meters from the waters of the Hasbani River, while Syria got 132 million m3 from the Banias rivers and the waters of Al-Wadaya and Yarmouk.
Israel responded to this project with another third, in which it introduced the Litani River into the Jordan River system and gave Lebanon 450 million m3, knowing that the Litani alone gives about 800 million m3 and 140 million m3 from Hasbani, thus Israel has given Lebanon half of the share to take the largest share.
This project aims at economic and political normalization with Israel, and recognition of the Zionist entity and its rights in Arab waters.
Legally, there is no treaty between Lebanon and Israel that determines the amount of water for each party. Lebanon only took its right to water in the Johnston project, which is 35 million m3. The Arab countries rejected Johnson’s project, which the Israelis also rejected.
Based on the Convention’s definition of the term watercourse, I will present some information regarding the Jordan River or the so-called Jordan Basin.
Its length is 252 km and its basin area is 40,000 km2, which is four times the area of Lebanon. 60% of this basin is located in the Kingdom of Jordan. Although the area of the Jordan River Basin, which is located in Syria and Lebanon, is small and does not exceed 5% of the area of its basin, it receives the largest amount of water from the basin. In the area where the Allenby Bridge is located, and until the end of the basin in Lebanon, it receives about 13 billion m3 of rain annually. It is in this region that the main tributaries of the Jordan River are located.
In the upper river basin, where Lake Hula was formerly (and was drained by the Israelis), the important tributaries of the river come from Jabal al-Sheikh and the Golan. These rivers are: Al-Hasbani, its capacity is about 150 million m3 and it originates in Lebanon, then Banias, and it originates from Jabal al-Sheikh in Syria, and it feeds Jordan with about 160 million m3. In this area of the upper basin of the river, the Al-Baragheth River flows with a capacity of 20 million m3, and the Hula springs feed the river with about 130 million m3. That is, the river is fed in this range by a total of 820 million m3.
These previously mentioned quantities flow into Lake Tiberias, which is the largest reservoir in Palestine to collect fresh water and distribute it on Palestinian lands up to the Negev. After the river exits Lake Tiberias and for a short distance it meets with its most important tributary, the Yarmouk River, in which water collects from the Hauran plains, the Golan Heights, and the northwestern Jordan, where it feeds the Jordan River by about 490 million m3. The Jordan River continues its flow until it flows into the Dead Sea. Meanwhile, its tributaries meet in the East Bank, which feeds it with about 270 million m3, the most important of which are in Jordan: Wadi Al-Arab, Wadi Al-Yabis, Zarqa River and Wadi Shuaib, and from the streams of the occupied West Bank, the river feeds in its course with about 250 million m3.
Thus, the water revenue of the Jordan River consists of about 1900 million m3, mostly from Syria, Jordan, and then Lebanon.
What is the area occupied by Al-Wazzani in the Jordan River network, and what Al-Hasbani constitutes for Jordan, and Al-Wazzani for Al-Hasbani:
The Hasbani River is one of the upper tributaries of the Jordan River, in which there are more than one tributary, and it is the “head” of the Jordan River – if it is correct to say – or its beginning. Al-Hasbani starts from the upper part of eastern Lebanon in the Rashaya region (Yanta and Aita al-Fakhr), and penetrates Lebanon with a length of 55 km and 21 km from the Hasbani spring. The average rate of this river (ie its annual level or discharge) varies from one reference to another, with 138 and 140 million m3.
As for the springs that flow into this river, they are:
- Al-Hasbani Spring, which gives it 31 million m3
- Sareed Spring 20 million m3
- Two springs that come from Shebaa, namely the Jouz spring and the Maghara spring, and they give it 10 m3
- Al-Wazzani sprin gives it 4.61 million m3
As for the remaining 18 m3, it comes from valleys, small springs, and a torrent.
International law defines in its articles the principles on which the rights of states in international waters are determined, which are seven. Based on Article VI of the Convention, which relates to factors related to equitable and reasonable utilization, which are:
- Geographical, hydrological, climatic and ecological factors and other factors that have a natural character.
- The social and economic needs of the concerned watercourse states.
- The population that depends on the watercourse in each watercourse country.
- Effects of the use or uses of a watercourse in one of the watercourse countries on other watercourse countries.
- Existing and potential uses of the watercourse.
- Preserving, protecting, developing and economizing the water resources of the watercourse and the costs of the measures taken in this regard.
- The availability of alternatives of comparable value for a specific intended or existing use.
In the case of Wazzani, Lebanon is the country of the source, which means that the head of the Jordan River is the Hasbani, and it is known that the country of the source is able to control if it has the capabilities, which is a set of geographical, hydrographic (watercourses), hydrological (water characteristics), climatic and ecological factors, and all these mentioned factors are available.
In addition, the water is fresh, but it becomes saline by an increase of 20 per cent when it flows into Lake Tiberias, so this water is strategic because it mitigates the nature of the salty water, especially the springs adjacent to the Sea of Galilee. It is worth noting that the lake’s water evaporates, as it is located 210 meters below sea level, which leads to a loss of about 270 million m3 of its water.
Paragraph “e” supports Lebanon’s position in terms of restoring the Wazzani water, which stipulates the existing and various uses in terms of Lebanon’s compelling to implement agricultural projects along the river in the presence of about 4,000 hectares suitable for agriculture, in addition to Lebanon having to build a dam to generate electricity provided that the water is not cut off about Israel.
Then paragraph “f”, which stipulates the preservation, protection, development and economy of the water resources of the watercourse, and of course Lebanon, will preserve them as it is its only wealth.
In addition to that, Article 7 refers to the issue of the obligation not to cause significant harm to other watercourse states, and this protects Lebanon from any action that Israel might take to harm its waters.
Previously, the practical response by the Lebanese government to Israeli ambitions was the construction of the Qaraoun Dam and related projects. This response is not without a political dimension. Now it is expected to complete the second phase of the Litani project, construct the Khardali Dam, and distribute the river’s water to the land and people of the south.
By reviewing the terms of the agreement, Lebanon, for example, alone or in cooperation with Syria and Turkey, since there is more than one common river (the Orontes ‘Assi’ with Syria and Turkey, and the Great River with Syria), based on Article 19 and 20, can take measures to prevent pollution and protect the sewage ecosystem aquatic. Through these measures, the environment is preserved, and this is a benefit to Lebanon.
I note that Article 24 relating to management has a clause related to cooperation between the states of the same watercourse for the sustainable development of the watercourse. Thus, through sustainable development, future generations can benefit from this watercourse, and this certainly has a benefit for Lebanon.
Article 26 emphasizes that the stream states must cooperate to maintain the facilities connected to the stream, and this is another benefit for Lebanon in the event that it requests Syria’s assistance in maintenance work in the event that the Lebanese state is not able to carry out these works alone.
Watercourse states shall develop plans to confront a natural emergency (earthquakes, floods) or as a result of industrial action, to ensure facing the dangers that may occur and may affect the watercourse states. These steps are binding according to Article 28.
With regard to waterways in times of armed conflict, they enjoy a kind of protection guaranteed by the principles of international law, provided that these waterways are not used to violate these international rules. Lebanon benefits from this immunity, especially in the Wazzani area, which has long threatened the Israelis to take measures hostile to the Lebanese sovereignty. I recall that the Israeli army built dirt roads near the Wazzani resort that are suitable for military use to cross the vehicles in order to do any aggressive act. In addition, this army penetrated the technical strip at the Wazzani point and repeatedly threatened the owners of the tourist resort there, as long as Lebanon does not use that area in a way that contradicts the principles of international law, then Lebanon benefits from the international protection of the Wazzani watercourse.
With regard to national security, Lebanon is not obligated to provide vital information related to its national security to Israel as stipulated by Term 31.
As we have seen, Lebanon can benefit from the agreement that suits its interests in a number of matters, and thus proves its right before the international community and has a legal basis in the face of Israeli ambitions.
The States that acceded to the Convention affirmed their conviction of the necessity of cooperation and collective action in the field of international watercourses in order to protect them and to promote the optimal use of international watercourses.
The entry into force of the United Nations Convention on International Watercourses is a major achievement of international law. It is also a confirmation of the principle of cooperation on international watercourses, and the theory of equitable and reasonable utilization.
The international law of water is the law of cooperation. Cooperation is the only way to make the most of, manage and protect a shared watercourse.
The Lebanese state must be alert to all the points that serve its interests and that harm it, in order to face all the upcoming challenges. It should not be overlooked that international law obliges states to announce their projects to the countries concerned, and to the United Nations in the event of hostility, as is the case between Lebanon and Israel, so that the relationship between them is governed by the armistice agreement.
Israel’s failure to sign the agreement does not absolve it from its non-compliance with the principles of international law, because the latter is customary law.
Finally, Lebanon and the Arabs have a binding legal text that is considered a strong card in their hands, but unfortunately regional and global conditions or pressures will remain the strongest in the process of determining sharing water between countries.