Archive for May, 2017

The Greening of Water Law: Why and How We should Modernize Legislation to Account for the Environment

Monday, May 22nd, 2017

The following essay by Ariella D’Andrea is an introduction to the training course on “The Greening of Water Law: Implementing environment-friendly principles in contemporary water law,” which she designed and coordinated. The course is available on UN Environment’s InforMEA E-Learning Platform. Ms D’Andrea is a member of the Executive Committee of the International Association for Water Law (AIDA). She can be reached at ariella.dandrea [at] gmail.com

 

In the past century, water management focused primarily on developing the resource to satisfy human needs: irrigation, hydropower, industrial and municipal uses, and so on. National governments around the world put in place a broad range of infrastructure and mechanisms for the abstraction and use of water resources to implement their development policies.

This display of engineering skills for dam construction, diversion of watercourses, groundwater pumping and, more recently, desalination has not always been mindful of environmental concerns that may result from technological advances. More often than not, efficient water abstraction was the main objective with little thought given to the long-term availability or quality maintenance of the resource. This approach was based on the conception of water as a renewable rather than finite resource. Although water quantity and quality regenerate through the hydrologic cycle, we now know that the amount of water on Earth is constant. Of this water, only about 2.5% is freshwater and, of that volume, around 0.3% is readily accessible being found in rivers and lakes; the rest is stored in glaciers and ice caps or in aquifers underground.

All life forms need clean and sufficient water to thrive, which is produced by healthy ecosystems.  Time has shown that inconsiderate economic development may critically affect the rate at which freshwater is generated in the natural environment, thus compromising the crucial ecosystem-support function of water resources in a vicious cycle of progressive water salinization and biodiversity loss, at least in a local context.

Inspired by traditional knowledge, some countries have declared the environment or specific waterbodies as right holders. In Ecuador, Mother Nature or Pacha Mama was granted the right to the conservation of water resources (Water Resources Law 2014 based on the Constitution of 2008); New Zealand recently granted legal personality to the Whanganui River, with rights and duties as well a legal representative (Te Awa Tupua (Whanganui River Claims Settlement) Act 2017); shortly after, the forests and waterbodies of the Indian State of Uttarakhand, including the Ganga and Yamuna Rivers, were declared as legal entity by the High Court of Uttarakhand (Uttarakhand High Court Decision 2017); at this very moment, French Polynesia is considering the possibility of granting legal personality not only to its rivers but also to its ocean Te moana nui a Hiva (Parliamentary Question to the Minister of the Environment, 28 March 2017).

Greening-course2Clearly, a balance must be struck between people’s needs and those of the natural environment. Moreover, action must be taken to reverse the degradation of waterbodies, knowing that the status quo ante cannot always be restored. UN member States recently committed, under Sustainable Development Goal 6, to “ensure availability and sustainable management of water and sanitation for all”, including by implementing integrated water resources management and by protecting and restoring water-related ecosystems.

Water law can support this commitment by guiding water use and management towards sustainability. To do this, it must become ‘greener’. In practice, the water law ‘greening’ is the process by which legal provisions regulating the use of water resources progressively incorporate environmental concerns. The greening of international treaties, regional agreements and domestic legislation on water resources may be carried out by: freshwater treaty negotiators as they bring environmental principles and concerns to bear on negotiations over shared freshwater bodies; domestic legislatures embedding environmental provisions into laws and regulations, and by judges interpreting legal provisions in light of environmental law.

Legislation reflects the society it regulates; therefore, early domestic water laws generally supported the ‘development craze’ and focused on abstraction and use of water resources rather than protection and conservation. Similarly, early international water law, including bi- or multilateral agreements on shared waters, focused on allocation of those waters between riparian countries rather than preservation.

Environmental concerns started making their way in both domestic and international water law in the second half of the 20th century and, more conspicuously, after the Rio Earth Summit in 1992 when the greening wave acquired momentum and depth. It was during that decade that two major treaties on transboundary waters were adopted: the 1992 UNECE Water Convention, and the 1997 UN Watercourses Convention.

The interdependence of water and nature is now widely recognized, not only in the scientific world but also by policy- and lawmakers. The environment is increasingly being recognized as a water user, competing with the different human uses of the resource, and a wide range of solutions are emerging to ensure that environmental concerns are duly accounted for in water law.

‘Green’ provisions often aim at controlling effluent discharge to minimize pollution of natural waterbodies, or more innovatively promote wastewater reuse thanks to advances in water treatment technology. They also aim at establishing an ecological flow of water in rivers to allow aquatic life or a water reserve for human and environmental benefit. An environmental impact assessment may be required before developing infrastructure that might affect water resources. Certain standards may be established to protect aquatic biodiversity (e.g. migratory fish passage in dams), prevent soil erosion (e.g. reforestation of river banks) or prevent groundwater pollution (e.g. protection of recharge areas). Legislation may also recognize ecosystem services, such as the provision of freshwater or the regulation of floods, and establish payment or compensation schemes for those who maintain healthy ecosystems.

The most progressive examples of ‘green’ provisions are generally found in domestic legislation, with international water law often lagging behind despite the ‘green’ potential of its main guiding principles – equitable and reasonable utilization, no significant harm and ecosystem protection. A vast range of multilateral environmental agreements adopted during the last 50 years, such as the 1997 Ramsar Convention on Wetlands and the 1992 Convention on Biological Diversity, may effectively support the process of water law greening, both at domestic and international level, by prompting normative reform and orientating judicial interpretation towards environmentally-sound application of water use principles.

Funded by UN Environment (formerly UNEP), the online training course on “The Greening of Water Law: Implementing environment-friendly principles in contemporary water law” was developed by the International Association for Water Law (AIDA) with the contribution of 10 authors and 6 reviewers, as a guide for policy makers, technocrats and experts. The course focuses on the implementation of international principles for sustainable water management, stemming from both binding and non-binding instruments, and on their implementation in domestic legislation, transboundary agreements and related court/arbitration decisions.

The program is accessible free-of-charge from the INFORMEA website. It involves a series of slides and readings, including a brief and group exercises presented as a manual for lecturers, and requires 5 days to complete considering one module per day. A condensed version of the training course will be presented in a Special Session at the XVI World Water Congress of the International Water Resources Association (IWRA) that will be held in Cancun, Mexico at the end of this month.

Further reading:

Burchi S., Balancing development and environmental conservation and protection of the water resource base – the “greening” of water laws, FAO Legal Paper Online #66, June 2007

Eckstein G., et.al., The Greening of Water Law: Managing Freshwater Resources for People and the Environment, UNEP, 2010