Archive for October, 2011

The Silala Basin: One of the Most Hydropolitically Vulnerable Basins in the World

Thursday, October 27th, 2011

A few months ago, Brendan Mulligan and I published a paper entitled “The Silala/Siloli Watershed: Dispute over the Most Vulnerable Basin in South America in the peer-reviewed International Journal of Water Resources Development. The dispute, pitting Bolivia and Chile, provides a fascinating case study involving both transboundary surface and ground water resources. Of particular interest, it also involves an artificial watercourse traversing the border that may defy application of international water law to the controversy. In 2007, UNEP named the Silala watershed the only “high risk” basin in South America and “one of the most hydropolitically vulnerable basins in the world.”

The dispute focuses on water flowing across the Bolivian-Chilean border in the Atacama Desert via a canal constructed in the early 1900s by Antofagasta & Bolivia Railway Company, a Chilean mining operation, per a concession granted by the Bolivian Prefecture of Potosí. Bolivia claims ownership over the Silala River on grounds that the river originates from springs on its side of the border and that the Silala’s waters are transported artificially to Chile; in essence, Bolivia denies the existence of a Silalar river. In 1997, the Bolivian government revoked the concession on grounds that the waters had long been used for purposes that were different than those agreed to in the original agreement. It also sought to awarded a new 40-year concession to the Bolivian firm DUCTEC SRL for $46.8 million, established a military base on the banks of the Silala River, publicly discussed a plan to bottle the river’s water and sell it with the slogan “Drink Silala water for sovereignty,” and conducted a feasibility study for a hydroelectric plant on the Silala just inside Bolivian territory (see Bloomberg article). At one point, Bolivian officials asserted that any negotiations with Chile should guarantee Bolivia access to the Pacific Ocean (see Spanish-language article), a demand suggesting that the issues surrounding the Silala are not entirely water-focused.

In contrast, Chile bases its ownership claims on grounds that the Silala’s waters were never diverted from its original channel, but rather that the canal works merely augment the natural flow of the Silala River. Hence, Chile argues that the Silala is and always has been a transboundary river subject to international water law. Moreover, it contends that it need not pay for the use of the Silala and that Bolivia’s rescission of the original concession, as well as Bolivia’s awarding of the more recent DUCTEC concession, were illegal. It is noteworthy that while Chile voted in favor of the 1997 Watercourses Convention, Bolivia abstained from the vote and neither has signed or ratified it. Although the two governments have attempted to resolve the dispute, including drafting a bilateral agreement on the use of the waters of the Silala, it remains unresolved.

The applicability of international water law to the Silala scenario depends largely on whether or not the Silala River is described as a natural transboundary watercourse. A manufactured river, in the form of canals or other man-made systems, would not fall within the rubric of international water law since, by definition, such water bodies are proprietary and subject to the agreements that created them. Moreover, international water law does not apply to surface runoff flowing in a marginally defined or in undefined channel (e.g., surface runoff) regardless of whether or not the flow crosses an international boundary.

In the case of the Silala Basin, most of the spring flow is captured by artificial channels, constructed by the mining interests under its 1908 concession from the Bolivian Prefecture of Potosí and that cross into Chile via the principal canal. This would suggest that the water in the canal is subject solely to the terms of the concession agreement rather than to international water law. And when Bolivia rescinded the concession, the waters’ ownership reverted back to Bolivia.

Nevertheless, geological and topographical evidence (including onsite evaluations conducted by my co-author, Brendan Mulligan), as well as certain historical material, indicate that prior to canalization, the Silala springs flowed naturally across the Bolivian-Chilean border in approximately the same path as the principal canal. If this proves true, application of international water law is still unclear since we would have a transboundary river that was captured and canalized for private use.

Chile might argue that the concession trumps international water law since international law allows for the creation of agreements deviating from international standards so long as the deviations do not violate jus cogens (peremptory international norms). On the other hand, Bolivia may contend that the concession was a license revocable at the will of the licensor (Bolivia). If this latter analysis holds, then the rules for the basin reverted back to the default norms of international water law when the Bolivian government revoked the concession in 1997.

Still, to the extent that the flow of the pre-canalized Silala was intermittent rather than perennial, applicability of international norms also may be tenuous. The substantive rules of international water law can be understood, in part, as rules of liability. In other words, violation of the rules mandates the imposition of responsibility and recompense. Violation of the rules, however, can only occur where human actions interfere with the natural flow of the watercourse. Where a river fails to flow for natural reasons, as an intermittent stream is wont to do, no liability may be imposed. Moreover, the absence of state practice or examples in which international water law norms were applied to an intermittent stream suggests that this scenario is, at best, unresolved. Hence, to the extent that prior to canalization water in the Silala flowed across the Bolivian-Chilean border only intermittently, international water law principles may not be applicable to the present dispute.

Further complicating the scenario is the presence of an interrelated transboundary aquifer. As noted above, the Silala River is fed by springs in Bolivia. Those springs, however, emerge from the Silala Aquifer, which is believed to traverse the Bolivian-Chilean border. Unfortunately, as little as is known about the topography and geology of the Silala River Basin, even less information is available about the underlying aquifer. In addition, international law applicable to transboundary ground water resources is still in its infancy and there are only a few examples of state practice from which lessons can be drawn (see my article on Managing Buried Treasure Across Frontiers: The International Law of Transboundary Aquifers).

Whether additional facts and scientific information will be forthcoming from the parties or from independent sources is presently unclear. Moreover, even with such information, international water law, whether for transboundary surface or ground water resources, may not have a ready solution. As is often the case in disputes over shared water resources, negotiations may provide the most optimal solution for this most hydropolitically vulnerable of basins.

Lessons Learned: From High Ross to the Columbia

Monday, October 17th, 2011

Jeff Dornbos, an associate at Warner Norcross & Judd LLP, provided the following guest post. He recently published an article, “All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes” in the Fordham Environmental Law Review (here). In this guest post, he discusses how some of the lessons presented in that article apply to the Columbia River Treaty renegotiation. Jeff wishes to thank Laura Rogers-Raleigh for her valuable research assistance.

On April 2, 1984, the United States and Canada entered into a treaty that ended the High Ross Dam controversy, a protracted dispute over a proposal to raise the height of a hydroelectric dam located on the Skagit River in Washington State. Analysis of the dispute resolution processes, and the successful outcome of the treaty, suggest that there are several advantages to organizing transboundary-water-dispute negotiations around hydrologic boundaries rather than political boundaries.

The High Ross dam, a hydroelectric dam that generates power for Seattle, is built on the SkagitRiver, which flows from the Canadian provinceof British Columbia, across the border, and into the state of Washington. The controversy arose when Seattle Light Company developed a proposal to raise the dam in order to meet its growing demand for energy. Following through with the proposal would have generated more electricity for the city of Seattle, but it also would have flooded approximately 5,475 acres of pristine wilderness in British Columbia. Ultimately, after lengthy efforts to resolve the issue, the United States agreed not to raise the height of the dam in exchange for a long-term supply of electricity from Canada, at the price it would have cost to raise the dam.

Resolution of the High Ross Dam controversy was hailed as a success on both sides of the border. President Reagan noted that it was “constructively and ingeniously settled.” Canada’s external affairs minister and the U.S. Secretary of State said it could serve as a model for resolving other transboundary disputes. It was the process, however, not the resolution, that was the most interesting aspect of the dispute. Specifically, the successful negotiations took place between representatives of Seattle and British Columbia, not high-level officials from Ottawa and Washington. According to one negotiator involved in the process, both American and Canadian government officials told local officials to figure it out and then report back when they had a solution. In the end, it was the local negotiators who played the key role in resolving the dispute.

At least two studies of the controversy (an oral history project and a research paper that based its findings largely on interviews) suggest three factors contributed to the success of the negotiations: First, even though it was a transboundary dispute, local negotiators, with local knowledge and a stake in the outcome, played a central role in resolving the dispute. These negotiators were able to balance different interests without getting caught up in other, unrelated, disputes between the two countries. Second, the resolution included the participation of a variety of interest groups. Third, the availability of both scientific and experiential knowledge was useful in achieving a mutually acceptable resolution. As the authors of the Oral History Project stated, “experiential knowledge is not clearly distinct from scientific knowledge – the two inform and influence each other to create a more richly textured public wisdom.” Involving local negotiators helped to ensure availability of sound scientific and experiential knowledge regarding the transboundary water body.

These three lessons are consistent with three fundamental aspects of transboundary water resource management: fostering long-term cooperation, ensuring public participation, and gathering accurate data. Each of these is a focus of well-known water and environmental instruments, including the Berlin Rules, the Rio Declaration, and the Watercourses Convention. Long-term cooperation is necessary to avoid the tragedy of the commons (the prisoner’s dilemma provides another useful analogy). Accurate data gathering is essential for evaluating how the actions of those using the water resources will impact it in both the short and long term. And public participation is justified both as an ends in itself and as a mechanism for better decision making.

The three lessons are also consistent with the “watershed approach” to managing water systems whereby management of water resources is based on the boundaries of the watershed rather than political boundaries. The approach is based on the understanding that political boundaries are not always the best demarcation lines for managing water resources because watersheds often cross jurisdictional and political boundaries, including international frontiers The lessons of the High Ross Dam controversy also mirror very well the EPA’s three guiding principles to the watershed approach: getting those most directly affected by decisions involved in the decision making, focusing on the geographic boundaries of the water body, and basing decisions on strong science and data.

The International Joint Commission (IJC) recognizes that the watershed approach provides a useful framework for managing transboundary water resources. In one report, for example, the IJC highlighted resolution of the High Ross Dam controversy as one of its achievements in fostering transboundary environmental management. In that same report, developed in response to a request from the United States and Canada to provide proposals for how to best assist in meeting the “environmental challenges of the 21st century,” the IJC suggested developing international watershed boards to help resolve transboundary water disputes between the United States and Canada.

The High Ross Dam provides useful lessons for future transboundary water agreements, such as the renegotiation of the Columbia River Treaty. The treaty, originally ratified in 1964, resulted from the desire of both the United States and Canada to cooperatively manage the Columbia River in order to control flooding and provide electricity. Pursuant to the treaty, the two countries constructed dams to generate electricity and regulate flooding, which have provided significant benefits to citizens of both nations.

Notwithstanding these benefits, some residents of the basin criticize the treaty, and construction of the dams, for leading to the flooding of fertile farmland, displacement of 2,300 residents, loss of tribal cultural sites, and destruction of wildlife habitats. Specifically, many residents of the basin argue that they were not given sufficient input in the original treaty negotiations. On the Canadian side, for example, dissatisfied residents have established the Columbia Basin Trust. The group’s stated function is to provide “advice on meaningful consultation processes with Basin Residents and local governments on any process to amend, renew or terminate” the Treaty. South of the border, the United States established a Sovereign Review Team that includes representatives from states, tribes, and relevant organizations, tasked with delivering recommendations for the future of the Treaty.

Although local groups are being given the opportunity to provide input on the renegotiation process, the Columbia River Treaty presents at least two opportunities for further involvement from local stakeholders. First, beyond simply getting input from local stakeholders, local negotiators could be empowered to participate in the negotiation process. Second, the treaty could be renegotiated to include the establishment of a watershed board, comprised of local experts and stakeholders from the basin, empowered to negotiate resolutions to disputes. Article XVI of the treaty, for example, could be amended to give this watershed board the ability to assist in settling differences. The board would be established around the geographic boundaries of the basin, tasked with studying the basin, and empowered to help settle differences that arise over time.

Transboundary water resources, by definition, do not fall neatly into political or jurisdictional boundaries. International transboundary water resources are not rare, as demonstrated by a United Nations-supported report, estimating that nearly half of the world’s population lives “in river and lake basins that comprise two or more countries.” Developing sophisticated international watershed boards is unlikely to be feasible in many of these transboundary basins. But the lessons from the successful resolution of the High Ross Dam controversy suggest that there are advantages to structuring negotiations over transboundary water disputes around hydrologic boundaries, not just political boundaries. While international disputes may often require some involvement of “high-level” officials, these officials should look to the boundaries of the watershed at issue and involve local stakeholders who are as closely aligned as possible to that watershed. Transboundary water agreements, for example, could include a rebuttable presumption that negotiations over transboundary water disputes begin with identifiable groups organized at the most decentralized hydrological level. Ultimately, including this rebuttable presumption would help to meet the goals of fostering long-term cooperation, promoting public participation, and gathering accurate data, such as were keys to resolving the High Ross Dam controversy.