Panel 5:
Large Dams and Institutional Frameworks: The Role of Legislation and National Development Policies

Dr. Sharif S. Elmusa
American University in Cairo, Egypt
Dams, Power and International Water Law

(Paper not presented)

This paper focuses on the proposed Wihdah Dam on the Yarmuk River (the principal tributary of the Jordan River). The agreement to build this dam was made between Jordan and Syria. However, nothing has been built since 1953 partly because of political disputes but also because of the large numbers of small dams that Syria built on the Yarmuk River.

The paper draws comparisons and contrasts between the Wihdah Dam and the small dams, on the one hand, and, on the other hand, the Turkish dams built in the upstream of the Euphrates-Tigris River basins and the Aswan High Dam downstream of the Nile River Basin.
The paper argues that:

• Power (military and economic) is the decisive factor in whether or not dams are built on international rivers.
• Stream-position, although itself, an important power attribute, is less decisive than the conventional power attributes.
• International water laws has traditionally favoured the downstream and "prior-use" riparians, and that the 1997 UN Convention does not change this bias in any palpable manner.
• A large number of small dams, such as those that Syria has built on the Yarmuk and that Ethiopia is building on the Nile, are only possible in the upstream and that, while they may not have the same overall environmental impact as an equivalent large dam, they are, nonetheless, the equivalent of such a dam when it comes to quantities. In other words, they do not help in the reconciliation of the tension between the significant harm and equitable utilisation principles in the present UN Convention.
• The harmonisation of this tension requires a restatement of the principles themselves and not changing the size of dams. Otherwise, dams would continue to be built by the more powerful states and perhaps not in the environmentally best locations.

Ms. Robyn Stein
Bowman Gilfillan Inc., South Africa
SA's New Democratic Water Legislation: National Government's Role as Public Trustee in Dam Building and Management Activities

The presenter described the backdrop to decision-making for new dams in South Africa under three main headings: process related issues, constitutional mandates, and the doctrine of public trusts. On process, Ms. Stein commented on the legacy of apartheid where water rights were attached to the land and the need to sever this link. Constitutional change initiated though the interim constitution, provided a democratic foundation and guarantees every South African access to sufficient water. Under the public trust doctrine, Ms Stein highlighted the obligation of the State, through the Minister of Water Affairs and Forestry, to fulfill the core principles of the Act, in particular taking into account the primacy of water for basic needs and for the environment, the options assessment process, and the life cycle approach.

The National Water Act 36 of 1998 is one of South Africa's most important pieces of reconstruction and development programme legislation. It transforms the approach to water allocation from one of inequitable sharing of water through private rights to one based on public rights where the resource is common to all. The Act, and the government's role in it, reflects the bill of rights enshrined in the new South African Constitution. Its aims include meeting basic human water needs (of present and future generations), equitable access to water, facilitating social and economic development and protecting aquatic and associated ecosystems. Specific measures include the ability of the Minister to declare risky dams unsafe and ensure repairs are performed and to ensure that a reserve of water is left flowing through rivers, protecting the ecological integrity of the river system.

The Public Trust Doctrine in the new Water Act addresses the responsibility of the national government as the public trustee in the managing and protecting of the water resources. It requires that the principles of equity and sustainability comprise the basis of all decisions, including the construction of new dam projects. The government in its role as public trustee is obligated to openness and transparency and moves towards the increased development of a participatory democracy. In concluding, Ms. Stein emphasised that equity, sustainability and efficiency are not negotiable.

Mr. M.J. Tumbare
Zambezi River Authority, Zambia/Zimbabwe
Some Lessons Learned from the Management of the Binational Kariba Dam for Future Large Dams Projects

(Paper not presented)

Kariba dam was built on the Zambezi river in the mid-fifties. The Zambezi is the fourth largest river in Africa and spans eight countries. The dam inundated 5 580 km2 of agricultural land, forests and human and wildlife habitat at full supply level, directly affecting 57 000 Tonga/Korekore people and 5 000 wild animals. The dam was built in a period when environment impact assessments (EIAs) were not considered important. There was insufficient time and only
œ650 000 for planning and implementing a credible resettlement program for the displaced people. The paper raises questions as to whether this could have been a deliberate omission of the colonial policy.

The paper recommends that in future resettlement and mitigation measures should compensate for lost property and provide appropriate developmental avenues for the displaced. As an act of reparation to the people who made way for the Kariba Dam, the Zambezi River Authority has set up a Zambezi Valley fund. The implementing countries, Zambia and Zimbabwe now have EIAs in place and would subject future dams to it.

According to the paper, the conjunctive, single-system operation of the complex hydropower project, responsible for power generation and transmission, is an exemplary lesson in co-operative and transparent working between two countries. The Zambezi River Authority, which owns, monitors, operates and maintains the dam and the reservoir for Zambia and Zimbabwe is an example of a resilient institution cementing co-operative relationship between two countries. Political will and commitment are important factors for the success of such joint projects. Lessons learnt from Kariba should inform future dam building in the region.

Ms. Marwa Daoudy
Graduate Institute for International Studies in Geneva
Water, Institutions and Development in Syria: A Downstream Perspective from the Euphrates and Tigris

Ms. Daoudy's presentation was based on the perspective of Syria as a downstream riparian on the Euphrates and Tigris rivers, where Turkey is upstream. She mentioned it did not deal with Iraq as the lowest riparian. The Euphrates and Tigris rivers are important for Syria's national development, as well as for water- and food-security objectives (the same is true for Turkey and Iraq). With Syria using 42% of its available renewable resource, and as 80% of its surface water comes from other countries, it has developed indicators to record its water resource vulnerability. As 90% of Syria's water is used for irrigation there are questions as to whether a more efficient (economic) use would be in the industrial sector. Amongst other factors is the culturally embedded value given to agriculture and other social benefits, and this has halted any transition. However, it is imperative for all countries in the region to obtain long-term security over water allowing formulation and implementation of long-term development objectives.

Two main issue areas were presented. First, the internal water stress within Syria as a result of internal supply and demand, and upstream abstraction. Ms. Daoudy recognised that water charges are low and are not linked to quantities used. She saw an urgent need to unify water codes - covering pollution, allocation, overpumping, and salinisation. In Syria, the goal of food security is linked to national security. There is a major focus on increasing irrigated area with the construction of dams. There are 156 dams mainly on the Euphrates, and although considered successful , evaporation is a major aspect. Future emphasis will be on smaller multipurpose dams. She felt there was a strong need to focus on demand management and to promote a shift from agriculture to industry.

Secondly, the increase in upstream abstraction through Turkey's GAP project which has 22 dams on Euphrates and Tigris. Ms. Daoudy asked the question, 'How can we foresee the future in terms of interaction?' Syria is most dependent on the Euphrates. Negotiations have been based on interactions at technical levels starting in 1962 and the problems of co-ordination surfaced only when the problems were politicised. She referred here to the alliance between Turkey and Israel, which she felt had isolated Syria. This was further exacerbated by Syria's support for the Kurds.

Ms. Daoudy gave examples of two rivers that have dried up and acknowledged that Syria also played a part on one of them (the Haboor). She estimated though that there has been a 50% cut in Euphrates flow. In addition to water quantity, there is a water quality problem as 35% of return waters from GAP have high herbicides and pesticide loads. In conclusion, Ms. Daoudy felt that the negotiation process that stalled in 1993 could be revived. At the same time though, Syria is asking the World Bank not to fund projects under GAP. She emphasised that a solution has to be found between the three riparians.

Even so, the three immediate countries with mutual dependency on the two river basins (Turkey, Syria and Iraq) have yet to reach a comprehensive water sharing agreement.

Mr. Seydi Ahmed Diawara
L'OMVS, Inter-State Organization for the Development of the Senegal River Valley
L'OMVS: An Experience in the Management of Shared Water Resources

(Presented by Mr. Mahammadou Sacko)

The 1800km long Senegal River begins in Mali and passes through Senegal and Mauritania before reaching the Atlantic. The Senegal River's watershed covers a total area of 300 000km2. The speaker presented the history of the agreements between the three participating countries and laid out the legal and institutional aspects of their collaboration, concentrating on the institutional mechanisms in establishing OMVS. OMVS initiated the construction of the Manantali and the Diama dams to partially control the hydrological regime of the Senegal River in order to meet the requirements of irrigation, hydropower generation and seasonal navigation. The dams started operating in 1986 and 1988 respectively. Considerable negative impacts appeared very quickly after the opening of the two dams. OMVS and its partners immediately focussed on environmental mitigation measures.

The environmental impact mitigation and monitoring program (PASIE) was started in 1997. The main goals of PASIE were to implement a series of mitigation activities, define the means of implementation and evaluation and allocation of budget. In addition it also defined the roles of various implementing agencies such as the State, private utilities, principal contractors and national electricity utilities. The PASIE has six, sub-programs, including poverty alleviation and rural electrification. The monitoring program entails collaboration with local communities and NGOs to monitor environmental impacts and implement immediate remedial measures. The other significant component is the Optimal Reservoir Management program that intends to work towards optimising the flood regimes of the dams to adapt to drought and wet conditions and mitigate negative impacts on recession farming, grazing, fishing and wetlands.

Commissioners' question time

Chair:
Please can we have copies of the agreements and the institutions' framework for the Senegal River?

Commissioner Scudder:
In some cases of international rivers, not all countries are members. Political decision-making may be more important than economic considerations. In coming up with criteria for mainstream or tributary dams, what should be the balance between political factors and economic factors. What criteria should financiers have?

Ms. Daoudy:
There is an international customary rule, which says that before the construction of big dams, riparians are supposed to consult with each other to obtain consent. From what I understand, this practice was institionalised in international practices to the point where the World Bank is not supposed to finance projects if other riparians have not been consulted.

Ms. Robyn Stein:
Returning to fundamental principles of international law and the domestication of international protocols and harmonisation around the principles (eg SADCC protocol) - one should not just focus on international treaties but also look at the UN Charter on Economic and Social Rights. Incorporation of these principles into domestic law is important.

Mr. Sacko:
I think that one needs to take into account the needs of the population first. In such situation, it is not uncommon for the economic and political agendas to clash. However, I think that the situation would be improved if solidarity in thinking along both lines could be achieved

Commissioner Blackmore:
I am interested in the implementation of the new South African Water Law. What is the level of environmental impact that is considered acceptable and how will the environmental assessment be undertaken? Is there an intelligent owner of the Act that can manage implementation ?

Ms. Stein:
The challenge of implementation has been recognised and this has led to phased implementation. Localised catchment agencies will be developed over time and entrusted with responsibilities once the Minister is satisfied on the level of representation and capacity. It is expected to take 10 to 20 years - piloting and testing to determine sustainability. On EIA , the Act seeks to integrate this with existing legislation. The Act also has to recognise the fundamental human rights articulated in the Constitution.

Commissioner Moore:
I am interested to learn whether you are aware of any examples of a project that has been changed or rejected as a result of South Africa's new Act or an example of reparations made?

Ms Stein:
I recall there was a case for a dam in the Northern province dam where there were deaths due to construction of a weir and a number of unforeseen social impacts. Emergency measures were introduced to deal with this and there was a payment of compensation using common law principles - out of pocket loss for dependants.

Chair:
During my term in office, I refused permission for a feasibility study on a joint dam with Namibia on the Orange river and insisted that we must first look at alternatives, and until alternatives are produced, I would not give the go ahead to the feasibility study.

Commissioner Patkar:
In the case of the South African Water Law, I am interested in how conflicts are resolved particularly regarding the aspects related to delinking of land and water (how do the landless gain access), the trusteeship of communities vis … vis the state at large and what role do you envisage for the communities? On the cost recovery aspect, how would positive discrimination be in favour of the poor?

Ms. Stein:
The context of the reforms in the SA Law is important, namely the demise of apartheid. Under the Act there is an automatic right for basic needs - ownership of land is not a pre-requisite. The Act is also integrated with the land reform programme. The trustee concept is a system of developing water management at the appropriate level (localised) and representivity is very important - mandated trustees that will assume the Minister's powers - but they must be democratic. On cost recovery, the pricing strategy allows for differentiation for block tariffing and cross subsidisation.

Commissioner Veltrop:
Firstly I would like the presenters to comment on the relationship between the contribution to a rivers flow arising within individual countries and the position regarding sharing. Also, to what extent do countries address the problems of dry years in their negotiations and does the presence of a number of large dams have a beneficial effect on dry season flows?

Ms. Daoudy:
There is considerable debate on the controversial issue of the contributions from each country. It is not just about the adequacy of data but also about bargaining positions. I feel that international law has moved to assessing countries' needs rather than their contribution. For dry years - the deal between Syria and Turkey talks of a minimum amount only for the period needed to fill Ataturk dam. This now needs to be renegotiated - what countries look at is the mean annual flow so it is difficult to have a predictive element. Upstream interests argue that it improves dry season flows, but the dams can also divert water out of the river.

Mr. Sacko:
The Permanent Committee meets twice a year and regularly as required to manage the river in abundant and dry years. It also meets to re-allocate water and decide on the allocations to energy, irrigation and water supply. This committee expects to reach a consensual compromise on allocations.

Summary of panel 5

The discussion centred around the legal frameworks and institutions required for managing water between users and between countries.

• The water needed for basic human needs is central to the new SA Law that also emphasises the importance of life cycle management and re-allocation following the fall of apartheid.



• The implementation of new laws requires a gradual implementation strategy and a long lead in time for fundamental change in allocations (acquired rights).



• Clearly, the sharing of water within a basin requires co-operation between riparians, and raises sovereignty issues. There is a need to look at the specificity of individual cases.



• The Chair commends the need to take into account the needs of its neighbours in allocation of water.