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The Human Right to Water in Latin America

May 14th, 2018

The following essay by Anna Berti Suman is a summary of her recently published monograph (under the same title), which appears in Vol. 3(2) 2018, pp. 1-94, of Brill Research Perspectives in International Water Law. Ms. Berti Suman is a PhD Researcher at the Tilburg Institute for Law, Technology and Society (TILT) at Tilburg University in The Netherlands. She can be reached at A.BertiSuman [at] uvt.nl.

The right to water (RtW) is a key factor both shaping and shaped by the social, political, and economic arena of a country. Often, conflicting interests are at stake when water governance is addressed. A large and heterogeneous number of governance solutions have been proposed with the aim of balancing the interests of civic society and the private sector, as well as respect for the environment and public finance concerns. The main aim of this monograph is to illustrate and analyze lessons from Latin America contributing to the international debate on the governance of the RtW. The attention is specifically focused on questioning the role that each stakeholder should have in the water debate with a view to harmonizing the RtW with the interests of the concerned stakeholders.

Water, as a shared resource, calls for a transboundary approach. Various forms of cooperation and association among the global community are discussed as, for example, the World Water Forum organized by the World Water Council, and the Global Water Partnership. Relevant treaties, such as the 1992 UN Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, demonstrate the importance of cross-sectorial and multi-level cooperation in addressing water governance challenges.

Demonstrations during the ‘Water War’ in Cochabamba, Bolivia, which occurred December 1999 – April 2000.

Subsequently, the monograph proceeds in a preliminary and indispensable discussion on the dual nature of water, as an indispensable source of life and as an economic good, thereby acknowledging that water has been recognized as a social good and a human need, as well as a commodity. Its economic value will be inspected through the analysis of the debate ongoing at the international and national levels. A remarkable example of this double nature is identified in the Chilean legal framework for water, where two texts provide for the rights of private citizens over water (granted by the 1980 Constitution and the 1981 Water Code) and for water as a national property for public use (as stated by the 1981 Water Code; the Constitution lacks a similar provision). The economic value of water is also approached from the international perspective, as enshrined in the 1992 Dublin Statement on Water and Sustainable Development.

The monograph next delves into local scenarios and inspects the transposition of RtW in constitutional laws of Latin American countries and its interplay with water management systems. Part A investigates the broader discussion in Latin America on the responsibility of the state towards the right to water, when recognized in constitution and when acknowledged through different legal tools. It also considers whether the state has a duty to grant a quantitative and qualitative minimum of fresh water to everyone, even if through subsidies or by impinging on private interests. The consequences of a state’s decision-making process that does not take into account the RtW are illustrated through three case studies, the participatory case of Porto Alegre, Brazil, and two cases of conflicts over water management, namely the case of the Matanza-Riachuelo River Basin, Argentina, and the case of Cochabamba, Bolivia.

The cases presented in Part A serve to illustrate the limits of the law in resolving water management issues. The discussion also examines the judicial system under the analytical lens of its suitability to settle water disputes. Overall, Part A stresses the need to focus the water debate on specific issues rather than on general statements.

The linking element bridging the transition from Part A to Part B is the discussion of whether the right to water as a human right is in antithesis to privatization. Part B considers the main Latin American water management systems, with their advantages and disadvantages, and compares them with European legal frameworks. In principle, the analysis suggests that the recognition of water as a human right does not prevent the privatization of the service, as long as the state monitors the private provider’s operations and complies with its obligations to ensure the RtW.

Participatory budgeting including water issues in Porto Alegre – Brazil

Part C provides a specific insight into the relationship between the market and the RtW in the context of Chile’s highly privatized water framework. The Chilean case offers an opportunity to reflect on the importance of the engagement of all affected stakeholders in the water debate as well as on the need for a wise compromise among them.

In the Conclusion, the lessons learnt from Latin America are summarized. The limits of the law in resolving water conflicts, and the disconnection of water issues from the adopted legal framework, are outlined to demonstrate the mismatch between the legal framework and the reality of water challenges. While it is not possible to identify the ‘best’ water management model, the analysis affirms the general need for a focus on the specificities of each river basin unit. The final message presented is that recognition of water as a human right does not prevent the possibility of privatizing the service if the state fulfills its obligations toward the right to water. Ultimately, the engagement of all affected stakeholders in the debate over water can facilitate constructive and open-minded compromises for jointly facing water challenges.

Posted in Human Rights, Latin America, South America, Water and Health | Comments Off on The Human Right to Water in Latin America

Flowing from fiction to fact: The challenges of implementing legal rights for rivers

May 7th, 2018

The following essay is the fourth in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (see first essay / second essay / third essay). The purpose of this series is to engage in a dialogue assessing the merits and value of such recognition, as well as possible implications. This essay is written by Dr. Julia Talbot-Jones who recently completed her PhD in economics at the Australian National University, and serves as Managing Editor of the UNESCO Global Water Forum. She can be reached at julia.talbot-jones [at] anu.edu.au.

Granting a river legal standing may sound like the stuff of fiction, but in 2017 four rivers were granted legal rights in rapid succession: the Whanganui River in New Zealand, the Ganges and Yamuna rivers in India, and the Rio Atrato in Colombia. Although these recent events washed away the fictional narrative, questions remain about how the approach will work in practice.

This essay engages with the practicalities of effective governance, drawing comparisons between the Whanganui River case and the India examples to understand the circumstances under which the approach may be a useful governance tool. It will also shine light on some of the social costs of granting rivers legal rights that may be otherwise unanticipated by policy makers.

What determines the effectiveness of legal rights for rivers?

The effectiveness of using the granting of legal rights to rivers as an alternative water governance approach is likely to depend on how the change is enacted and the broader framework in which it is embedded.

In the case of the Whanganui River, eight years were taken to develop an institutional framework that incorporated the Māori worldview into legislation in a way that could work with existing laws and social norms. Granting the Whanganui River and its catchment legal rights through legislation was a pragmatic way of achieving this.

Motivation for the change came from needing to resolve ownership issues, which had been long-standing and costly for Whanganui Iwi (the local Māori tribe) and the Crown (New Zealand government), as well as other river users. As a result, in designing the new framework the actors involved (Iwi and the Crown) were economically and socially invested in reaching a successful resolution. Further, those involved in designing the institutional arrangement were those most likely to be affected by the changes. This gave the actors a feeling of ownership over the end result and allowed for local knowledge to be incorporated into the decision-making process and legislation.

The resulting institutional framework, Te Pā Auroa nā Te Awa Tupua, also includes rules designed to control for some of the more obvious risks and costs of granting rivers legal rights, such as rent-seeking by the guardians and processes for managing conflict over competing uses. It defines a boundary around the affected area (the catchment) and specifies who retains what responsibilities over decision-making. Further, the new framework was designed to be implemented in two stages to smooth the transition and provide the opportunity for adaptation, as needed.

In contrast, the Uttarakhand court in northern India instated legal rights for the Ganges and Yamuna rivers in a surprise ruling two days after the Whanganui River legislation was announced. The designation of legal rights was designed to trigger a substantive shift in the way that the rivers were managed and protected in law, but there seems to have been little thought to how the change would work in practice.

For instance, the Ganges and Yamuna rivers are transboundary rivers that stretch across several states in India, as well as into Bangladesh. This means that a state ruling from northern India may struggle to be enforced in other jurisdictions. Further, the absence of an integrated institutional framework means that there is little guidance for the guardians on how they are supposed to behave or where the limits of discretion lie. The conflation of legal person and living person in the court decision complicates this further by failing to properly define (or codify) the rights’ breadth.

Unintended consequences of granting legal rights to rivers

For policy makers or judicial experts interested in granting rights to rivers, the elements of the broader Te Awa Tupua framework are important to note, particularly because, in the absence of an integrated framework, granting a river legal rights could have unintended consequences for society as a whole.

For example, recognising a river as a person will require the political system to find ways and means to deliver and uphold a river’s new legal rights, sometimes at the direction of the courts. Because judges do not have the discretion to make decisions based on the potential consequences of their decrees this may mean that upholding the rights of the river may impose unexpected costs on other sections or scales of society.

Further, although granting legal rights to rivers has the potential to benefit some industries and professionals who stand to gain by providing court-mandated goods and services, it also carries the risk of forcing the court to become politicised. This has the potential to compromise moral authority and public confidence in the system. The series of events following the Uttarakhand decision provides evidence of how this can, and has, occurred.

Granting legal rights to rivers also places the responsibility of looking after, and representing, the environmental good or resource in the appointed guardians, rather than elected officials. Without broader institutional and financial support, this means that only wealthy or well-endowed representatives will be able to challenge decisions and enter costly litigation, should a river wish to sue or find itself the subject of an individual or class action.

Given the financial burden of engaging in judicial process, perhaps it is not surprising that Ecuador – a country, which granted all of nature legal rights in 2008 – has had only three cases of the rights of nature being successfully brought to court by civil society. In the first case, two American residents who live part-time in Ecuador brought a case against the Provincial Government of Loja on behalf of the Vilcabamba River. The plaintiffs owned property downstream of a road that was to be widened and that runs past the river. The couple argued on behalf of nature that the new construction was adding debris to the river and thus increasing the likelihood of floods that affected the riverside populations that utilise the river’s resources.

Admittedly, in the case of the rivers discussed here, nominated guardians have been appointed to speak on behalf of the rivers and in the case of the Whanganui River, a NZ$30 million contestable fund has been created for the purposes of improving Te Awa Tupua’s health and wellbeing, as well as litigation purposes. However, in the case of the Ganges and Yamuna rivers, no financial support has been provided, which potentially limits the legitimacy and power of Ganges and Yamuna rivers’ legal rights, and that of the guardians who represent them.

Conclusions

Overall, granting the Whanganui River and its catchment legal rights set new precedent for water governance globally. It was one of the most significant changes in water management in the past decade and demonstrates that the concept of granting rights to rivers is now more fact than fiction.

However, comparing the case of the Whanganui River with the examples of the Ganges and Yamuna also brings attention to the fact that the reason granting legal rights to rivers may be an effective water governance tool is really due to the broader institutional framework that embeds the new system into existing legislative structures.

For policy makers interested in using legal rights as an approach for the governance of rivers, considerations of institutional design and the potential effects on wider societal outcomes are important to note. With any luck this will help reduce the risk of additional costs arising when rivers are granted legal standing in the future.

Further Reading

Fish, L., 2013. Homogenizing community, homogenizing nature: An analysis of conflicting rights in the rights of nature debate. Stanford Undergraduate Research Journal, 12, pp.6–11.

Kauffman, C.M. & Martin, P.L., 2017. Can rights of nature make development more sustainable? Why some Ecuadorian lawsuits succeed and others fail. World Development, 92, pp.130–142.

O’Donnell E.L., 2017. At the intersection of the sacred and the legal: Rights for nature in Uttarakhand, India. Journal of Environment Law, 30(1), pp.135-144.

O’Donnell, E.L. & Talbot-Jones, J., 2018. Creating legal rights for rivers: Lessons from Australia, New Zealand, and India. Ecology and Society, 23(1), p.7.

Salmond, A., 2014. Tears of Rangi: Water, power, and people in New Zealand. HAU: Journal of Ethnographic Theory, 4(3), pp.285–309.

Posted in Oceana, Rights of Nature | Comments Off on Flowing from fiction to fact: The challenges of implementing legal rights for rivers

Legal rights for rivers: more power, less protection?

April 23rd, 2018

The following essay is the third in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (see first essay / second essay). The purpose of this series is to engage in a dialogue assessing the merits and value of such recognition, as well as possible implications. This essay is written by Dr. Erin O’Donnell, a water law and policy specialist currently a Senior Fellow with The University of Melbourne and a consultant for The World Bank. She can be reached at erin.odonnell [at] unimelb.edu.au.

In 2017, four rivers received legal rights and became legal persons: the Whanganui in New Zealand, Rio Atrato in Colombia, and the Ganga and Yamuna rivers in India. Legal rights for rivers certainly sounds like a good idea: it means giving rivers the legal tools to protect themselves, and expands legal systems to include consideration of the needs and rights of nature, as well as humans.

But this very framing highlights two significant problems. Firstly, just what is ‘nature’? Western legal frameworks have dealt very poorly with this concept, and tend to embed a dichotomy between the ‘natural’ and the ‘human’, which breaks the powerful bonds between people and country that are so central for First Nations peoples.

Secondly, why should nature need to protect itself in law? Modern environmental law is essentially public law created to protect collective values and interests in a clean and healthy environment. It is part of a broader set of public interest laws intended to ensure that the law acts on behalf of those too vulnerable to speak up for themselves in an adversarial context.

Giving rivers legal rights replaces this emphasis on the collective good with individual rights, most particularly the right to sue and be sued (legal standing), so that rivers can go to court and advocate for their own interests. In 1972, Christopher Stone made a compelling argument as to why legal standing is so important: without it, harm to the river can only be recognised if it is also harm to human beings. But standing law has evolved significantly since 1972, and many environmental organisations can now speak on behalf of the environment. Ultimately, rivers only need a voice if we expect them to compete for their own outcomes. Giving rivers a voice means we can effectively abdicate our responsibilities for looking after them, because they will do it instead.

What kind of evidence is there for these sorts of unexpected effects? Rivers have only received legal rights directly in the past year, and it is too soon to tell exactly what impacts these new legal entities will have. But we can examine some less direct examples, such as the legal entities responsible for recovering and managing environmental water, to see what might happen next.

Murray River

Emerging narratives: competition and collaboration

Environmental water managers are found throughout the world, but are particularly active in acquiring and managing water using water markets in Australia and the USA. What makes them useful examples is that they use their legal personality to make decisions on where, when and how to use water to achieve ecological outcomes, and in doing so, they begin to speak and act on behalf of the aquatic environment.

In Australia, environmental water managers are now some of the largest holders of water rights in the Murray Darling Basin. This water has been recovered via investment in the water market, as well as investing in infrastructure efficiency to generate water savings. In 2004, policy makers argued that the environment has a legitimate need for water. By 2008, the rhetoric had shifted dramatically: the environment was labelled ‘just another user’ of water in the media, and rather than seeing the environment as an essential element for water resource security, irrigators began viewing the environment as a competitor. In 2010, policy submissions to the Productivity Commission supported using markets to buy back water for the environment from willing sellers. By 2015, in response to pressure from the irrigators, the Australian government passed legal reform to limit the volume of water that the Commonwealth Environmental Water Holder could buy from other users. The environmental water holders had successfully transformed the aquatic environment from a legal object, to a legal subject, with rights of its own. But in doing so, they had managed to weaken support for legal protections that were perceived as special treatment for the environment.

Weakened legal protections and the shifting cultural narratives have undermined the billions that have been invested in water recovery for the environment by leaving environmental water vulnerable to theft, and the environmental water holders with little recourse.

The situation in the western USA has evolved rather differently. Environmental water managers have been unable to rely on highly active water markets, so they have been forced to adopt a much more consensus-based approach to water recovery across the western USA. Each transaction to recover water for the environment is long and expensive, but each transaction produces a local champion, willing to extol the benefits of water recovery to their local communities.

However, legal rights are only valuable to the extent that they can be enforced. Environmental water managers can find it difficult to use the legal powers they currently have, if it means going up against members of their communities. Legally, they may retain the same set of rights and duties as other users of water (although many states still impose specific limits on water for environmental purposes), but they cannot make effective use of them without losing community support.

The paradox of legal rights for rivers

Rivers with legal rights can take action to protect themselves, but when they do, people are less likely to want to protect them, and less willing to support legislation that does. This apparent paradox creates real problems for the emerging jurisprudence of rivers as legal persons, and it may well create more problems than it solves.

We can already see some early warning signs. In India, the High Court of Uttarakhand awarded the Ganga and Yamuna rivers the status of a legal person, and nominated individuals within the state government of Uttarakhand to act as guardians. The government immediately appealed this decision to the Supreme Court of India, in part, because they were afraid that they could be sued for damages caused by the rivers during flooding events. The Supreme Court has stayed implementation of the original ruling, leaving the legal status of the rivers in limbo until they reach a decision.

Hope for the future?

It may be possible to mitigate this paradox by building stronger connections between people and rivers. The two most successful cases of legal rights for rivers, in New Zealand and Colombia, show the power of using legal rights for rivers to protect not only the ecology of the river, but also the relationship between people and the river. In New Zealand, the legislation is explicit: the new legal rights rest on the Maori belief of Ko au te Awa, ko te Awa ko au: I am the River and the River is me.

The Yarra River at Pound Bend

In Australia, the Victorian state government passed new legislation in 2017 to recognise the Yarra River as a living entity, on the basis that such recognition reflects the views of the Traditional Owners (the Wurundjeri and Bunorong Nations). The Victorian Environmental Water Holder, the second largest environmental water manager in Australia, is actively seeking new ways to build stronger relationships with all the people who use and value rivers and wetlands in Victoria, including an annual forum where recreational fishers, farmers, duck hunters, camping enthusiasts, regional communities and environmental advocates come together to discuss why water for the environment matters.

Giving legal rights to rivers merely for the sake of enabling rivers to go to court may end up being counterproductive. But it may be possible to achieve the larger goal of transforming our relationship with nature to one of mutual respect, rather than exploitation, by centering those new legal rights on the relationship between people and the river.

Further reading:

O’Donnell E and J Talbot-Jones (2018) ‘Creating legal rights for rivers: lessons from Australia, New Zealand, and India’ Ecology and Society 23(1):7

O’Donnell E (2018) ‘At the intersection of the sacred and the legal: rights for nature in Uttarakhand, India’ Journal of Environment Law 30(1):135-144

O’Donnell E (2017) ‘Competition or Collaboration? ‘Using Legal Persons to Manage Water for the Environment in Australia and the United States’ Environmental and Planning Law Journal 34(6): 503-521. (email me for a copy)

O’Donnell E (26 November 2017) ‘New Legal Rights for Rivers’ Global Water Forum

Posted in Rights of Nature | 1 Comment »

Shared Water Resources in West Africa – Relevance and Application of the UN Watercourses and the UNECE Water Conventions

April 16th, 2018

The following essay by Nwamaka Chigozie Odili is a summary of her recently published monograph (under the same title), which appears in Vol. 3(1) 2018, pp. 1-98, of Brill Research Perspectives in International Water Law. Mrs Nwamaka Odili is a Legal Officer with Federal Ministry of Justice, Abuja, Nigeria. She can be reached at amaka142 [at] yahoo.com.

West Africa has twenty-five shared watercourses but only six of them are governed by legal instruments. Yet, the region, like the rest of the world, is exposed to water-related stress due to the impacts of climate change, urbanization, and overpopulation. This position results in abundance of fresh water in some countries of the region and limited or scarce availability of the resource in others. The need for a regulatory framework for managing all the region’s transboundary watercourses, therefore, cannot be overemphasized. Although the principles of customary international law apply in all cases whether there are regulatory instruments or not, treaties create obligation that are needed to strengthen the international water law system. Global framework treaties like the UN Watercourses Convention and the UNECE Water Convention provide the needed support through universal norms ‘to shape the content of instruments adopted at the regional and basin level’ (Laurence Boisson de Chazournes, ‘Freshwater and International Law: the Interplay between Universal, Regional and Basin Perspectives’ (Paris, UNESCO, 2009) at 5).

Transboundary Watercourses in West Africa

Regulated

Transboundary Watercourse	Riparian States
Niger River Basin	Nigeria, Niger, Burkina Faso, Côte d’Ivoire, Benin, Cameroun, Guinea, Mali, Chad
Lake Chad Basin	Cameroun, Nigeria, Chad, Central African Republic, Niger, Libya
Volta River Basin	Ghana, Burkina Faso, Benin, Togo, Côte d’Ivoire and Mali
Senegal River Basin	Senegal, Guinea, Mali, Mauritania
Gambia River Basin	Gambia, Guinea, Guinea Bissau, Senegal
Koliba-Korubal River Basin	Guinea and Guinea Bissau

Non-Regulated

Transboundary Watercourse	Riparian States
Cross River Basin	Nigeria and Cameroon
Akpa Yafi River Basin	Nigeria and Cameroon
Queme River Basin	Nigeria and Benin
Tano River Basin	Ghana and Côte d’Ivoire
Komoe River Basin	Côte d’Ivoire, Ghana and Burkina Faso
Atui River Basin	Mauritania and West Sahara
Mono River Basin	Togo and Benin
Bia River Basin	Ghana and Côte d’Ivoire
Sassandra River Basin	Guinea and Côte d’Ivoire
Cavally River Basin	Côte d’Ivoire, Guinea and Liberia
Cestos River Basin	Côte d’Ivoire, Guinea and Liberia
St John River Basin	Liberia and Guinea
St. Paul River Basin	Liberia and Guinea
Loffa River Basin	Liberia and Guinea
Mana Morro River Basin	Liberia and Sierra Leone
Moa River Basin	Liberia, Sierra Leone and Guinea
Little Scarcies River Basin	Sierra Leone and Guinea
Great Scarcies River Basin	Sierra Leone and Guinea
Geba River Basin	Guinea Bissau, Guinea and Senegal

Since adoption of the General Act of Berlin in 1885, which dealt, inter alia, with the Niger River, more agreements have been contracted for the management of some of the shared watercourses in West Africa, particularly in the post-colonial era. Hence, West Africa contributed through these agreements to the development of international water law prior to the adoption of the UN Watercourses Convention and the UNECE Water Conventions in the 1990s. Initial instruments dealt primarily with navigation, while later agreements addressed the need for co-operation and incorporated other principles of customary international water law. The two conventions, no doubt, have influenced this trend such that water regimes in the region improved over time. This raises the question: do riparian states in West Africa need to be parties to either or both water conventions to enhance management, sharing and protection of their shared watercourses?

The influence of the UN Watercourses Convention in the region is established because water regimes implemented after adoption of the UN Watercourses Convention reflect some of its substantive and procedural provisions. Moreover some countries in West Africa are parties to the Convention. On the other hand, influence of the UNECE Water Convention in the region is limited and its potential benefits have yet to be determined. Article 25 and 26 of the UNECE Water Convention were amended to allow non-UNECE states that are members of the United Nations to become parties to the Convention. However, its mandatory provisions regarding basin organization and compliance with its stringent requirements, details, and tasks necessitates significant foreseeable financial and technical resources, which countries in West Africa now lack.

Although most West Africa water instruments are flawed by loopholes and there is need to address the problems generated by unregulated shared watercourses in the region, West Africa nations do not need to be contracting parties to both the UN Watercourses Convention and the UNECE Water Convention. What West Africa needs is a treaty position that accommodates the reality of the management of its transboundary water resources. Adoption of global treaties by the states of West Africa is not sufficient because the universal law in those treaties needs to be complemented by regional or basin agreement for realistic implementation. The important issue is not which global convention the states belong to, but rather how strong and efficient transboundary water resources management in the region has grown over time. To achieve this goal and to further address major gaps and failings in transboundary water resources management in West Africa, states in the region could negotiate a region-based water treaty to reflect the needs and concerns of the region and supplement it with basin-specific treaties.

The entire article is available here.

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Overturning aqua nullius – An Aboriginal perspective on personhood

April 9th, 2018

The following essay is the second in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (the first essay can be found here). The purpose of this series is to engage in a dialogue assessing the merits and value or such recognition, as well as possible implications. This essay is written by Dr. Virginia Marshall , the Inaugural Indigenous Postdoctoral Fellow with the Australian National University’s School of Regulation and Global Governance and the Fenner School of Environment and Society. She can be reached at virginia.marshall [at] anu.edu.au.

The proposed push by some individuals and groups to apply legal personhood upon rivers, and potentially extending this to other living things is counterintuitive from an Aboriginal perspective, and essentially counterproductive.

Australia is in western terms a nation state. If we measure Australia’s short history against the thousands of years of Indigenous heritage, bound as it is by birthright in a familial connection and relationship with everything on, above and below the land and waters, since time immemorial, the latter far outweighs any value flowing from propositions of legal personhood.

The Murray River in the vicinity of Lake Victoria NSW (courtesy of Paul Marshall)

Water landscapes hold meaning and purpose under Aboriginal laws. The inherent relationships of Aboriginal peoples with water are evidenced by Aboriginal creation stories, with Aboriginal identity defined through Aboriginal ontologies (Aboriginal normative values and beliefs, laws and knowledge). From an Aboriginal perspective, water is inseparable from the land; in many Aboriginal creation stories (not myths) water came first, then the land. Water is sacred and underpins Aboriginal kinship connection in birth, life and death. These traits are exemplified in Aboriginal obligations to maintain waterholes, ensure fire management (burning) practices, and monitor the health of all things within traditional boundaries and care for country. Aboriginal communities continue to seek to exercise their inherent rights and obligations as sovereign peoples, in spite of continual efforts to undermine Aboriginal property relationships, ownership of resources and ancient knowledge within contemporary Australia.

Why do Aboriginal peoples continue to fight for rights to protect country?

The majority of Australia’s High Court in Mabo v Queensland [No 2] determined that the doctrine of terra nullius (in simple terms, land belonging to no one) was not based on truth; that Aboriginal peoples did have settled laws, were sovereign, and had exercised continuing ancient traditions, customs and practices. In 2004 when Australia’s federal government legally separated water from the land, creating a market-based water regime, Indigenous peoples were not consulted. Aboriginal communities, throughout over two hundred years of colonisation, have been invisible in colonial constitutions and federalism (federation of Australia’s colonial states occurred in 1901). Australia’s Constitution affirms the invisibility of the First Peoples. Social activism (people’s movements) still run cold on restoring Aboriginal peoples’ leadership role on land, water and resource management. The title of my seminal book, launched in February 2017 by the Hon. Michael Kirby, ‘Overturning aqua nullius’ conceptualises the ongoing challenges as the various stakeholders, vested interests and governments in Australia continue to regard Indigenous ‘First Peoples’ in Australia as merely another stakeholder or a ‘special interest group’, a minority group.

The First Peoples of Australia have experienced waves of western policies and laws to remove, alienate and assimilate communities and individuals, and this western legal construct is complicit in decoupling the oldest living and continuing Indigenous culture in the world.

Why is the proposed UN Declaration of the Rights of Mother Earth misguided?

The proposed declaration fails to identify the unique position of Indigenous peoples for example within the gendered environment of land, water and living things which informs and connects Aboriginal identity (freshwater peoples, saltwater peoples etc.) in ‘a web of relationships’ balance. The assumption in the ‘rights of nature’ paradigm is that all ‘beings’ seek to ‘exploit, destroy and abuse’ the earth. The concept of ‘mother earth’ is described as hierarchical in the order of all things (Art 1), above ‘beings’; separating ‘each being’ in ‘relationships’ with the ‘mother earth’.

The preamble, which refers to ‘recognition and to defend the rights of mother earth’ appears oppositional to the inherent role of Aboriginal peoples to manage and protect their country, including the lands, the waters, totemic relationships with plants and animals. The preamble constructs language that enforces restrictions on Aboriginal laws, limiting and regulating inherent Indigenous rights and obligations (Art 1(7)). Notably Art 3 presupposes that Aboriginal communities’ values, beliefs, customs and laws are not adequate to maintain obligations to care for country. Art 3(e) seeks ‘effective norms and laws’ to defend the earth, effectively dismissing existing Aboriginal norms, laws and practices. It has been stated that ‘a new generation of lawyers are searching for ways to transform the legal systems of industrialised nations to nurture a harmonious relationship between people and the non-human world’, for example through the legal personhood theory. This proposition is antithetical to Aboriginal peoples’ inherent rights and obligations as First Peoples, which have operated effectively for tens of thousands of years in Australia.

Should we be persuaded by Salim v State of Uttarakhand High Court decision?

A reading of the judgement, Sharma J. (and Alok Singh J.) in mandatory directions to the Central Government and State Governments (U.P & Uttarakhand) to co-operate to ‘preserve and conserve the Ganga and Yamuna rivers’ makes certain things clear. This is an unusual role for the courts, in view of Australia’s separation of powers. Sharma J refers to a decision whereby the Supreme Court (Yogendra Nath Naskar v Commission) held that a Hindu idol was a juristic entity (of legal personality) capable of holding property and of being taxed under a trust arrangement, and that this entity must have human guardians. Juristic persons were said to be developed due to human need (Shiromani v Shri Som Nath Dass, SC), as in the construction of corporate entities, with rights and duties, to sue or be sued. The High Court order to give legal status (to be read with articles 48A & 51A(g) ‘protection of the environment’ of the Constitution of India), accords the significance of the Ganga and Yamuna rivers to all Hindus, and the continued supply of water to industry, communities, power generation and navigation.

The concept of a legal entity of itself is not trailblazing territory. In relation to introducing and advocating for the legal personality of a river; advocating for the rights of nature on grounds that all humans over-exploit, abuse and contaminate the environment is misleading. The Indigenous peoples of Australia have a primary, unique, and inherent obligation to exercise the ownership, protection and management of the Australian environment, but Australian domestic laws and policies do not fully support Indigenous Australians in the exercise of such obligations. For example, in Australia’s blueprint for water resource use, the National Water Initiative, Indigenous peoples do not have legal certainty and only three discretionary clauses (clauses 52,53 & 54) to represent thousands of years of actively maintaining pristine waters, lands and respect for all living things. Indigenous peoples in Australia have been, and continue to be, impacted by the untruths of the doctrine of discovery – terra nullius and aqua nullius – and they continue to be invisible to those seeking to exercise proprietary rights over Australia’s rivers. For decades, Aboriginal people have struggled for land rights and native title, for truth and reconciliation and for constitutional recognition. We are not willing to see the door shut in our face when it comes to our rights and obligations to our rivers.

Further Readings

Dr Virginia Marshall, (Foreword Hon. Michael Kirby) ‘Overturning aqua nullius: Securing Aboriginal water rights’ (2017, Aboriginal Studies Press, Canberra)

Dr Virginia Marshall, ‘Overturning aqua nullius: Securing Aboriginal water rights’ (Chapter 19) R Levy et al (eds) in New Directions for law in Australia: Essays in contemporary law reform (ANU Press, Canberra, 2017)

Dr Virginia Marshall, ‘The progress of Aboriginal water rights and interests in the Murray-Darling Basin in NSW: An essential element of culture’ (2015) 30 Australian Environment Review

Virginia Marshall, (PhD Thesis, 2014) ‘A web of Aboriginal water rights: Examining the competing Aboriginal claim for water property rights and interests in Australia’, Macquarie University

Posted in Oceana, Rights of Nature | 1 Comment »

Can the River Spirit be a Person in the Eye of the Law?

March 26th, 2018

The following essay is the first in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers. The purpose of this series is to engage in a dialogue assessing the merits and value or such recognition, as well as possible implications. This first essay is written by Ariella D’Andrea, an international legal consultant and Executive Committee Member of the International Association for Water Law. She can be reached at ariella.dandrea [at] gmail.com.

Triumph of Galatea by Raphael (circa 1514) – In Greek mythology, Galatea turns the blood of her dying lover Acis into a river, granting him immortality by making him a river spirit.

In the last decade, the environment and a number of water bodies have been granted rights and legal personality either through legislation or through court decisions. The personification of nature is not new. Humans have long considered their environment or some of its main components—the sun, the moon, the earth, the ocean, the rain, the river, the lake—as living entities or even gods. These beings, however, were outside or above the law. Now that our environment is degrading despite all laws and treaties adopted to protect it, we feel that we ought to defend its existence, not just for our sake but also for its own survival. Just like oppressed minorities throughout history have become right-holders to defend their identity, nature is now being granted rights of its own. It is becoming a legal person like corporations, public agencies or civil associations.

Formalizing the rights of nature through legislation

In the United States, municipal ordinances recognizing the right of nature to exist, thrive and evolve have been adopted since 2006 in several States through grassroots initiatives spearheaded by the Community Environmental Legal Defense Fund. Rights are conferred to “natural communities and ecosystems”, including the right to water, and residents are established as legal representatives to enforce nature’s rights (e.g. sections 618.3(a) and (b), Pittsburgh Anti-Fracking Ordinance 2010, as amended).

Latin America was next to adopt legislation on the rights of nature. In 2008, Ecuador recognized the constitutional right of Mother Earth to exist and evolve (section 71, Constitution 2008), which was successfully tested in court in 2011 for the protection of the Vilcabamba River. In 2010, Bolivia adopted Law No. 071 on the Rights of Mother Earth, which gives legal standing to nature by recognizing it as legal person of public interest (“sujeto colectivo de interés público”, art. 5) and establishes an Ombudsman for the protection of its rights (“Defensoría de la Madre Tierra”, art. 10). The guiding principles of environmental governance are further specified in Framework Law No. 300 of Mother Earth and Integral Development for Living Well 2012. Both countries recognize the right of nature to the protection of its waters (article 7(I)(3), Bolivian Law No. 071 of 2010; article 64, Ecuadorian Organic Law on Water Resources and Water Uses 2014).

More recently, New Zealand adopted national-level legislation granting legal personality to specific areas of cultural and environmental significance: Te Urewera (comprising Lake Waikaremoana and surrounding land and forests, as can be inferred from the Te Urewera Act 2014) and Te Awa Tupua (“comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements” section 12, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017). The new legal entities are respectively represented by the Te Urewera Board and by by two guardians known as Te Pou Tupua. Both acts implement the deeds of settlement of historical claims by the Māori people.

Formalizing the rights of nature through judicial process

A number of courts around the world have also taken steps to recognize the rights of nature in the absence of enabling legislation. In 2016, the Constitutional Court of Colombia recognized the Atrato River as a legal person (“entidad sujeto de derechos” Resolution 4, Court Decision T-622/16) to be legally represented by a commission of guardians. In 2017, the High Court of Uttarakhand, India, declared the Ganga and Yamuna Rivers and all their tributaries as legal persons and appointed two legal representatives “in loco parentis” (Uttarakhand High Court Order, 20 March 2017). A few days later, the same court declared “the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls” in the State of Uttarakhand as legal persons and appointed four legal representatives “in loco parentis” (Uttarakhand High Court Order, 30 March 2017). In July 2017, the Supreme Court of India stayed the operation of the first order based on a petition by the State of Uttarakhand reporting a number of legal and administrative issues (e.g. a single State cannot be responsible for a river that flows beyond its borders).

The Ganges-Brahmaputra Delta – The river delta lies mostly in Bangladesh and India, but tributaries from Bhutan, Tibet, India, and Nepal feed into it.

Most recently, in September 2017, the Colorado River Ecosystem/Deep Green Resistance v. the State of Colorado case was filed in the Federal District Court for the recognition of personhood of the Colorado River. It was withdrawn by the plaintiff following serious threats of sanctions from the Colorado Attorney General’s Office on the grounds that the case is unlawful and frivolous.

Future opportunities

Other countries are also exploring the possibility of granting rights and legal personality to certain components of their environment. Canada is looking into granting legal personality to Lake Winnipeg and Australia has now recognized the Yarra River (Victoria) as “one living and integrated natural entity” although not (yet?) as a legal person (section 1(a), Yarra River Protection (Wilip-gin Birrarung murron) Act 2017). A Universal Declaration on the Rights of Mother Earth—which includes the right to water—was also proclaimed by a number of countries at the World People’s Conference on Climate Change and The Rights of Mother Earth, held in Cochabamba, Bolivia, in 2010.

Critical questions remain

The debate on whether nature should have legal standing has been ongoing at least since 1972 (e.g. dissenting opinion of US Justice William O. Douglas in Sierra Club v. Morton) but many questions remain open. The diversity of approaches adopted in different countries does not help in bringing clarity to the topic. Is granting rights to rivers a case of codification of customary law or practices? Are we moving from an anthropocentric viewpoint to an eco-centric one, or are nature’s rights only a way to ensure that our biosphere remains inhabitable for future human generations?

Further questions include: who or what is being granted legal personality: the river, the river basin, the freshwater ecosystem, or the environment as a whole? Does the single fish or weed in the water have legal standing, or are we protecting aquatic biodiversity? What about the riverbanks and the surrounding trees and bushes? Humans are also undoubtedly part of the ecosystem as generally recognized. Does it mean that sustainable use is acceptable as long as the functioning of an ecosystem is maintained (relations between its components) or do we need to protect the integrity of the natural object (the river) or process (the ecosystem)?

If nature has a bundle of substantive and procedural rights (right to exist, thrive and evolve, right to water, right to sue and be sued, to enter into contracts, to hold property, to be compensated for damages…), doesn’t it have duties too (pay taxes, be liable for damages such as floods, maintain water quality and quantity)? What is the difference between a national park or protected area managed by a special-purpose body and a natural area declared to be a legal person? Does the ownership of the natural object or of the land where it lies have to be transferred to the new legal person (as in the Whanganui River Act) or does the State retain ownership (as in the South American examples)? What type of law applies to the relations involving the new legal person: public (constitutional, administrative, criminal) or private law? Would it be meaningful to introduce the crime of ecocide?

Most importantly, the new legal person needs to be made operational by clearly setting its defining features. What type of body is it? Is it a public authority, a charity, a body corporate? Or is it treated differently under different laws (e.g. section 17, Whanganui River Act)? What are its exact scope and mandate? Are its boundaries clearly delimitated? What are the powers of its legal representatives or guardians? Who are its members? How do we make sure that decisions are made in the best interest of nature itself or of a given ecosystem? Are there any dissolution procedure? Finally, if a transboundary water body is granted legal personality, the repercussions on the right of States to regulate the flow of international rivers will need to be explored.

Further reading:

Christopher D. Stone, “Should Trees Have Standing?—Towards Legal Rights for Natural Objects.” Southern California Law Review 45 (1972): 450-501

Christopher D. Stone, “Should Trees Have Standing? Law, Morality, and the Environment.” Third Edition, Oxford University Press, 2010

Cormac Cullinan, “Wild Law: A Manifesto for Earth Justice.” Second Edition, Green Books, Totnes, UK, 2011 (originally published by Siber Ink, South Africa, 2002)

Cormac Cullinan, “If Nature Had Rights”, Orion Magazine, 2008

David R. Boyd, “The Rights of Nature: A Legal Revolution That Could Save the World”, ECW Press, 2017

Posted in Rights of Nature | 2 Comments »

Mexico-U.S. Cooperation on the Colorado: Prioritizing Sustainability Under Minute 323

January 15th, 2018

The following essay is by Regina M. Buono and Jill Baggerman. Buono is a Non-resident Scholar at Rice University’s Baker Institute for Public Policy and a doctoral student at the LBJ School of Public Affairs at the University of Texas at Austin. She can be reached at regina.buono [at] utexas.edu. Baggerman is a fellow with the Robert Strauss Center for International Security and Law and the J.J. “Jake” Pickle Scholarship Program and is a graduate student at the LBJ School of Public Affairs at the University of Texas at Austin. She can be reached at kjmbaggerman [at] gmail.com.

Despite oft-seen headlines about “the wall,” immigration, and uncomfortable relations between the United States and Mexico, the countries continue to develop advanced cooperative strategies for governance and management of the Colorado River. On September 27, 2017, representatives from the U.S. and Mexico signed Minute 323, a new agreement under the 1944 Treaty governing the river, which is intended to create a more secure water future for Colorado River water users and support additional environmental restoration projects. The agreement is the product of longstanding collaborative efforts by environmental NGOs, water agencies, and governmental representatives from both countries and is designed as a successor to Minute 319, signed in 2012. Minute 319 created temporary measures to share shortages and surpluses between the parties, and provided a massive, experimental pulse flow to rejuvenate the Colorado Delta. (See here and here).

In a nutshell, Minute 323 authorizes mutually advantageous options to give the parties flexibility and facilitate longer-term planning of water storage and distribution under variable climate conditions. It provides for substantial investment in conservation projects in Mexico in exchange for additional water allocations to the U.S. Some of the more prominent stratagems of the plan are described below.

Minute 323 delineates procedures for coordinating approaches to operating under specified tiers of high- and low-elevation reservoir conditions, allowing the parties to take advantage of wet times and avoid triggering shortages in dryer periods. This increases certainty for each nation in managing water demands, and provides for agreement on the provenance and communication of information regarding environmental conditions. The U.S. Bureau of Reclamation’s August 24-Month Study will be used to project the January 1 elevation of Lake Mead, thereby determining yearly basin-wide allotments. The agreement also establishes the Binational Water Scarcity Contingency Plan in which Mexico agrees to join the U.S. states in temporarily taking less water from Lake Mead in order to avoid future shortages. Implementation of the plan is contingent on completion of the drought contingency plan being developed by the lower basin states.

Building on the successes of Minute 319, Minute 323 also enhances Mexico’s ability to store its allotments in U.S. reservoirs according to three categories of reserves: “Emergency Storage,” a “Revolving Account,” and the Intentionally Created Mexican Allocation (ICMA). The agreement extends Mexico’s ability to defer any part of its water delivery when the act of responding to an emergency—such as an earthquake—limits its ability to use an allotment. The Emergency Storage, along with the Revolving Account (which includes water previously deferred under Minutes 318 and 319) and ICMA (water Mexico may defer based on conservation efficiencies or new water sources that decrease demand for Colorado River water), constitutes “Mexico’s Water Reserve.”

International Boundary and Water Commission Commissioners announce signing of a new Colorado River agreement, Minute 323 on September 27, 2017. Photo by the U.S. Bureau of Reclamation, available at https://www.flickr.com/photos/usbr/23522391918/in/photostream/, and used under a Creative Commons Attribution-ShareAlike 2.0 license.

Commissioners Roberto Salmon (left) and Edward Drusina of the Mexico-U.S. International Boundary and Water Commission Commissioners announce signing of a new Colorado River agreement, Minute 323 on September 27, 2017. Photo by the U.S. Bureau of Reclamation; Creative Commons Attribution-ShareAlike 2.0 license (https://www.flickr.com/photos/usbr/23522391918/in/photostream/).

Minute 323 provides a number of rules to structure and facilitate sustainable management of these reserves, including limitation on total annual deliveries and provisions for evaporation losses. Reserves are to be delivered when needed unless Lake Mead is at low-elevation conditions or the timing would affect the January 1 elevation projection. Mexico may use its reserves for any purpose; may create a reserve of up to 250,000 acre-feet (AF) through December 31, 2026; and may withdraw up to 200,000 AF annually. Of water stored as ICMA, 2% is reserved for environmental purposes in Mexico. Minute 323 defines precise institutional procedures for when and how relevant agencies will manage the accounting records and release water deliveries. Storage and release procedures are based on the projected elevation of Lake Mead, meaning that environmental conditions and a recognized need for accurate evaluation and understanding of those conditions remain at the forefront of the agreement.

Minute 323 addresses a number of other issues benefiting both nations but of particular concern to Mexico. The agreement lists tasks for the Binational Salinity Work Group to achieve over the next two years, including the modernization of salinity monitoring equipment and automatic reporting tools. The agreement also addresses Mexico’s concerns about daily flow variabilities by creating the Binational Flow Variability Work Group, tasked with a pilot program to use existing storage capacity at Morelos Dam to reduce variability.

U.S. water agencies pledged to invest $31.5M in water efficiency projects in Mexico in exchange for an additional 109,100 AF in water allotments. Water savings generated by these projects will accrue to Mexico, except for allotments exchanged to the U.S. and specified allotments for the environment and system water. The water transferred to the U.S. will reduce pressure on the lower basin U.S. states as they attempt to meet increasing water demands. As with Mexico’s Water Reserve, the agreement coordinates institutional procedures for how the parties will conduct the exchange proportionally and simultaneously through 2026.

Seeking to leverage the success of Minute 319’s “pulse-flow”, Minute 323 includes provisions for the environment, particularly the river delta. The parties renewed their commitment to the environment by agreeing to partner with a binational coalition of NGOs to generate 210,000 AF of water for environmental purposes in Mexico, and pledging millions of dollars to fund scientific research, monitoring, and restoration projects. Mexico will also provide water for continued habitat restoration and scientific monitoring in the delta through 2026.

In sum, Minute 323 is an encouraging development for management of the river. The agreement provides Mexico and the U.S. with additional procedures and resources required to meet environmental and user demands for Colorado River water. Mexico benefits from increased flexibility regarding management of its reserves, as well as improved rules on flow variability and funds for conservation projects. The lower basin states also substantially benefit from the water transfers, which will lessen demand pressure throughout the system. The formal involvement of NGOs at the negotiating table increases the institutional capacity of both nations, creating incentives and synergies to facilitate conservation projects. The agreement is an indication that relations over the Colorado River continue to be strong and cooperative, are supported by well-developed institutions and active stakeholder participation, and increasingly focus on environmental sustainability and mutually advantageous solutions. Minute 323 advances each of these objectives, demonstrating that both nations continue to negotiate in good faith, even while the broader relationship becomes strained.

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2017 – The Year of Water Law

October 6th, 2017

2017 can, and indeed should, be called “the Year of Water Law.” A number of water lawyers have been honored by organizations and associations across the globe for their significant contribution to the legal field of knowledge in water resources management.

Dr. Salman Salman received the Crystal Drop Award from the International Water Resources Association (IWRA) at the IWRA 16^th Congress in Cancun, Mexico in June 2017. The Award, which Dr. Salman shared with Dr. Cecilia Tortajada, is the highest award of the IWRA, and is presented once every three years. The IWRA congratulated Dr. Salman for “achieving this unique distinction and attaining this notable award from the Association. Your extensive knowledge and broad experience in the water resources sector are, certainly, of an unparalleled match.”

Dr. Lilian del Castillo Laborde, was also honored in the same Congress in Cancun by the IWRA, and was awarded the notable and noble status of “Distinguished Honorary Member.” Lilian is a long-time member of the IWRA, and has served IWRA in various positions, including Vice President. She is also a member of the Executive Council of the International Association for Water Law.

Professor Gabriel Eckstein’s leading role as the Chair of the International Scientific Committee of the IWRA was widely acknowledge with deep appreciation by the IWRA in Cancun. The Committee was shouldered with the responsibility of organizing the IWRA Cancun Congress which turned into a major success, attended by more than 1,400 experts who presented and discussed more than 400 papers. Acknowledgement of Gabriel’s leading role was made during both, the opening and closing sessions of the Congress.

Professor Stephen McCaffrey was awarded in August 2017 the Stockholm Water Prize for his unparalleled contribution to the evolution and progressive realization of international water law. In its citation, the Stockholm Water Prize Nominating Committee recognized Professor McCaffrey’s “path-breaking leadership and legal scholarship in international water law. He has made a unique contribution in three specific areas: his seminal work on Treaty negotiation; his major scholarly works, including his book The Law of International Watercourses and; his leadership providing expert legal advice, wise counsel, training and facilitation of complex negotiations with a wide range of stakeholders.”

Dr. Mara Tignino, Senior Lecturer at at the Faculty of Law of the University of Geneva, and Coordinator of the Platform for International Water Law at the Geneva Water Hub, received the award “Women Peacebuilders for Water” at the international conference “Rules of Water, Rules for Life”, organized by the Milan Center for Food Law and Policy, in Italy in September 2017. This award marks the seventeenth anniversary of Resolution 1325 adopted by the United Nations Security Council on the contribution of women to peacebuilding in post-conflict situations. The award was given to Mara Tignino by the UN Special Rapporteur on the Right to Food, Ms Hilal Elver, and was motivated by her research in international water law and her dedication to the creation of new generations of international lawyers.

Truly, 2017 has turned out to be the Year of Water Law.

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Inter-State Water Law in the United States of America: What Lessons for International Water Law?

September 25th, 2017

The following essay by Professor Rhett Larson is a summary of his recently published monograph (under the same title), which appears in Vol. 2.3, 2017, pp. 1-82, of Brill Research Perspectives in International Water Law. Professor Larson is a Professor of Law at the Arizona State University School of Law. He can be reached at Rhett.Larson [at] asu.edu.

John Wesley Powell was an 19^th Century explorer of the western United States. In a report to the U.S. Congress, Powell recommended that the borders of future western states be based on watersheds and warned of the risks associated with political subdivisions sharing transboundary waters. Congress ignored Powell’s advice, and established western state boundaries with many inter-state waters traversing and, in some cases forming, sub-national borders. As a result, and as I discuss in my recent monograph published in Brill Research Perspectives on International Water Law, the United States has a long and colorful history of transboundary water management that provides both encouraging lessons and cautionary tales for international water law.

For example, the common law doctrine of “equitable apportionment” developed by the U.S. Supreme Court in cases involving its original jurisdiction over inter-state water disputes is similar in many respects to the principle of equitable and reasonable utilization embodied in Articles 5 and 6 of the U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses ( “Watercourse Convention”).

Beyond the obvious use of the word “equitable” in the articulation of both the inter-state doctrine and the international doctrine, the factors set forth by the U.S. Supreme Court in determining equitable apportionment are similar to the factors laid out in Article 6 of the Watercourse Convention in determining equitable utilization. The U.S. Supreme Court considers “physical and climatic conditions,” and international law considers “[g]eographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character.” The U.S. Supreme Court considers consumptive uses, while the Watercourse Convention includes considerations of the “effects of the use or uses of watercourses.” The U.S. Supreme Court considers wasteful uses, and the Watercourse Convention includes considerations of conservation options.

Despite these similarities, the U.S. doctrine of equitable apportionment and the factors included in determining reasonable and equitable utilization under the Watercourse Convention have differences that are important to note for what each doctrine may learn from the other. The Watercourse Convention expressly includes consideration of population, which seems an obvious factor missing from inter-state water law. The Watercourse Convention also considers both existing and potential uses of the watercourse, while the U.S. doctrine of equitable apportionment considers only “consumptive uses,” not necessarily potential future uses. It might also be helpful for the U.S. doctrine of equitable apportionment to expressly factor in ecological considerations in a way similar to the Watercourse Convention, because those considerations may not always be adequately captured by the concept of waste embodied in the U.S. law.

On the other hand, the U.S. equitable apportionment doctrine includes a cost-benefit analysis consideration that could be a helpful factor to evaluate equitable utilization in international water law. Additionally, the consideration of the character and rate of return flows under U.S. inter-state water law may also be a helpful factor to include in determining equitable utilization in international water law.

In Bean v. Morris, an early equitable apportionment case before the U.S. Supreme Court, the Court identified an important factor when evaluating inter-state water allocations that could be incorporated into international equitable and reasonable utilization analysis. States in the U.S. typically rely on one of two legal regimes for allocation rights to water. The approach to water rights in eastern states is generally common law riparian rights based on English and Roman laws, under which rights are apportioned to owners of property abutting water bodies based on the requirement that uses be reasonable. The approach to water rights in western states is generally prior appropriation, with water rights based on a first-in-time, first-in-right scheme, subject to beneficial use requirements and the prohibition against waste.

Neighboring U.S. states sharing transboundary waters can therefore have dramatically different approaches to allocating water rights and different policy aims in water management. These differences have aggravated inter-state water disputes over transboundary waters. The U.S. Supreme Court, in an early equitable apportionment case, sought to mitigate the impact of, if not reconcile, these different approaches to water rights. In Bean v. Morris, the Supreme Court held that it would apply principles of prior appropriation when allocating water between states that recognize prior appropriation as their own internal water rights system.

International water law could similarly look to using domestic water law principles held in common between two nations sharing a watercourse as a factor in the evaluation of reasonable and equitable utilization. Such an approach would be a more targeted application of Article 38(1)(c) of the International Court of Justice’s statute authorizing reliance on “general principles of law recognized by civilized nations” in resolving international disputes. Nations are perhaps more likely to view such a factor as reasonable and equitable if based on domestic laws already accepted and legitimized under their respective domestic laws.

Other potentially helpful lessons from U.S. inter-state water law for international water law may include the use of special masters to facilitate dispute resolution and the recognition and quantification of water rights held by indigenous peoples. Cautionary tales for international water law from U.S. inter-state water law include the inter-state problems created by the bifurcation of groundwater and surface water rights, and the over- or under-empowerment of basin-level, inter-jurisdictional commissions. Many countries with federal structures, like the United States, have been dealing with inter-jurisdictional water disputes for generations, and therefore could be fertile ground for cultivating ideas for reform in international water law.

The entire article is available here.

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New Book Explores the International Law of Transboundary Groundwater Resources

September 17th, 2017

The following essay by Gabriel Eckstein provides an overview of his forthcoming book on The International Law of Transboundary Groundwater Resources. The book should be released on 20 September 2017.

Approximately 600 aquifers worldwide traverse international frontiers. Yet, only four of these have been the direct focus of a treaty regime. In sharp contrast, more than 3,600 treaties have been crafted for the 276 shared rivers and lakes of the world. As a result, the international law applicable to transboundary groundwater resources is far less developed and understood than its surface water counterpart. To a significant extent, international groundwater law has yet to emerge on the international stage.

Nevertheless, increased regional scarcities and growing demand for freshwater resources have forced many governments to focus on all of their freshwater resources, including those found below the surface along their borders. In places like the Middle East, North and sub-Saharan Africa, parts of Central Asia, and the Mexico-United States border, nations have come to realize that transboundary aquifers serve as the primary or sole source of freshwater for their communities and natural environment.

As a result, various countries and international organizations are now beginning to explore legal options for the management of these subsurface water bodies. Both the UN International Law Commission and the UN Economic Commission for Europe have issued proposed norms aimed at guiding transboundary aquifer riparians on how to develop such regimes (see UN Draft Articles on the Law of Transboundary Aquifers, and UNECE Model Provisions on Transboundary Groundwaters). And agencies like the UN Educational, Scientific, and Cultural Organization are developing case studies and evaluating management approaches with the goal of developing equitable cooperative regimes.

While the international law applicable to transboundary groundwater resources is still in its infancy, progress is evident and preliminary trends can be discerned. This books documents these developments and offers a fairly comprehensive look at the evolutionary process that has led to the emergence of what may yet be termed international groundwater law.

The book opens with a general overview of the importance of groundwater resources to communities and humanity on a global scale. It then placed groundwater in a transboundary context and recognizes the governance challenges that arise among aquifer riparians. Taking a decisively interdisciplinary approach, Chapter 2 discusses groundwater resources in accessible scientific terms and lays the foundations for applying scientifically sound laws and policies to transboundary groundwater resources. It considers groundwater within the broader hydrologic cycle and describes and defines the various hydrogeological concepts and processes that must be considered by groundwater managers and regulators. The book then discusses in Chapter 3 groundwater in a cross-border context and presents six conceptual aquifer models to illustrate various scenarios in which groundwater resources can have transboundary implications. The models are all scientifically valid generic models, and are based on and represent the vast majority of circumstances found in nature under which an aquifer may have transboundary implications.

In Chapter 4, the book turns to the law and explores how groundwater has been treated in various domestic legal regimes and traditions, as well as in formal and informal arrangements between aquifer riparian states. This discussion lays the foundation for the growing attention paid to transboundary aquifers among governmental, inter-governmental, and non-governmental entities, and their interest in identifying globally acceptable legal norms and rules for managing groundwater resources that traverse international boundaries. Chapter 5 follows with an analysis of groundwater resources and aquifers under the U.N. Watercourses Convention, while Chapter 6 focuses on groundwater and aquifers under the UN Draft Articles on the Law of Transboundary Aquifers.

Taking into account the preceding chapters, Chapter 7 discusses the emerging trends in the evolution of international law for transboundary aquifers. It begins by reviewing the few formal and informal arrangements in existence in which nations have addressed directly the management or use of a transboundary aquifer. It then extracts those principles and norms that are common to all or most of these instruments and evaluates them as a basis for the possible emergence of international law. The book concludes with Chapter 8 where it identifies gaps in the law in light of the unique characteristics (especially as compared to surface water bodies) of groundwater resources and their potential cross-border implications. This final chapter is intended as a basis for further discussion and consideration of the continued development of this nascent but critical area of international law.

For more information about this book, please see here. To request a review copy, see here; Instructors can request an e-book exam copy here.

Posted in International Water Law, New Resources & Information, Transboundary Aquifers | 3 Comments »

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