Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty

April 16th, 2019

The following monograph by Dr. Maria A. Gwynn is a summary of her recently published monograph (under the same title), which appears in Vol. 4, of Brill Research Perspectives in International Water Law.  Dr. Maria A. Gwynn is a Senior Research Fellow at the Institute of Public International Law of the University of Bonn, and conducted most of the research contained in this monograph while she was an Oxford-Princeton Global Leaders Fellow at Princeton University and at the University of Oxford. She can be reached at maria.gwynn [at] uni-bonn.de.

 

The UN Convention on the non-navigational uses of international watercourses recommends that states adapt their existing bilateral and regional agreements to the provisions of the Convention to promote equitable and reasonable uses of watercourses. This monograph assesses the practical consequences of this provision, and the prospects for achieving

The Parana River

sustainable development with such action, and uses the Itaipu Treaty as a case study.

The Itaipu Treaty, which was signed and ratified by Brazil and Paraguay in 1973 and continues to be in force today, was established so that these two countries would jointly pursue the advantages that could be obtained from the exploitation of the Parana River to

The former Guaira Falls

produce hydropower through the construction of a dam. The Parana River is an international watercourse on the South American continent sourced by the La Plata basin. The dam was constructed at the river’s most powerful point, the Guaira Falls, formerly the greatest set of waterfalls on the South American continent, which disappeared after the construction of the dam.

The river’s great resources were not underestimated. Today, the sheer amount of energy that the Itaipu Dam produces has placed both countries among the largest producers of clean and renewable energy in the world. However, while Brazil consumes its entire share of the energy produced, Paraguay (whose available share of energy from the hydropower facilities far exceeds its own domestic energy demands) only consumes a small part of this clean and renewable energy source. Paraguay, instead, continues to use biomass sources (burning of coal and wood) to satisfy most of its energy needs. Under the Itaipu Treaty, Paraguay sells its unused allotment of energy to Brazil.In general, the Itaipu Treaty regulates the use and consumption of hydropower produced by the dam, making the provisions of the treaty very pertinent to understanding the two countries’ energy policies.

The Itaipu Dam and Reservoir

The Itaipu Treaty entered into force before the United Nations International Law Commission had finished its task of evaluating the international law and customs on the non-navigational uses of international watercourses, embodied in the UN Watercourses Convention, and before some of the major developments concerning international environmental law came about. However, the Itaipu

Treaty contains a renegotiation provision, according to which the two states must renegotiate some of its provisions 50 years following the conclusion of the treaty, i.e. in the upcoming year 2023. The monograph argues that this is a great opportunity for both countries to adapt their watercourse agreements to the current standard and principles of international law.

The monograph provides a detailed assessment of the advantages of adapting watercourse agreements to the standard and principles of all pertinent areas of international law, such as international water law, international environmental law, and climate change law. The first part of the monograph begins with an analysis of the initial approaches to the law of international watercourses in the first half of the twentieth century. It discusses some of the main principles of the law governing international watercourses and the work of pertinent institutions concerned with this area. In this sense, the first part of the monograph describes the status of the law on international watercourses at the time when the Itaipu project was first pursued.

Signing the Itaipu Agreement in 1973

The second part of the monograph discusses the Itaipu project in its legal and historical context. An analysis of the principles of consultation and notification for projects on international watercourses are particularly instructive. The monograph describes the relevance of the role of Paraguay, which despite being a main treaty party, has often been neglected in the scholarship.  The monograph shows how escalation of disputes to an international conflict regarding sovereignty was eased by benefit sharing agreements and inter-state cooperation of the countries of the La Plata basin. The monograph also offers a comparative analysis to similar cooperation and benefit sharing agreements signed at about the same time in other parts of the world.

The Itaipu Agreement

The third part of the monograph describes the advances in the law of international watercourses and of environmental law since the 1970s, and places the implementation of the Itaipu Treaty, which in turn is analyzed in the fourth part of the monograph, within this context. The fifth part of the monograph describes recent disputes concerning the non-navigational uses of international watercourses decided by the International Court of Justice in an analysis that connects the decisions of such judgments with the monograph’s object of study.

The monograph concludes by highlighting how the treaty provisions and their implementation could be affected by the developments in international law and the UN Watercourses Convention in particular. It argues that adapting watercourses agreements like the Itaipu Treaty to the provisions of the Convention is a way to foster

The UN Sustainable Development Goals

sustainable development. Doing so would be advantageous not only to the treaty parties, but also to the other countries in the water basin and to the international community as a whole.

The monograph is dedicated to the memory of Prof. Dr. Efrain Cardozo (1906-1973) and to Prof. Dr. Ruben Ramirez Pane (1920-2004).

The entire article is available here.

 

The International Law Association Helsinki Rules: Contribution to International Water Law

February 7th, 2019

The following essay by Professor Slavko Bogdanović is a summary of his recently published monograph (under the same title), which appears in Vol. 3(4) 2018 of Brill Research Perspectives in International Water Law.  Professor Bogdanović was on the Law Faculty of the University Business Academy in Novi Sada in Serbia and now is a consultant on water law and policy. He can be reached at nsslavko@gmail.com.

 

The International Law Association (ILA) started in 1954 its study of the principles and rules of international law applicable to the rivers making or being intersected by state boundaries. It was a moment after WWII when the enhanced harnessing of hydropower potential of international rivers was seen as a necessity. The rising development needs of nations in parallel with growth of populations resulted in enlarging demand for electric energy production. Engineering aspects of harnessing rivers were not the problem; the challenge was the applicable law. The lack of accepted and pertinent international law rules was a major obstacle not only for the economic development of nations, but also to the economy of the world in general.

Early in the last century, the Geneva Convention relating to Development of Hydraulic Power affecting more than one State (1923) and other (scarce) sources of international water law had shown their limits and inadequacy not only for resolving pending developmental problems, but also for addressing serious interstate disputes concerning the rights of upstream and downstream states to the waters of international rivers (some of the more well-known disputes included the Helmand, Indus, Nile, Jordan and Yarmouk, and Columbia rivers). At the time, the U.N. International Law Commission was not willing to deal with the issue of codification of the applicable law considering it to be premature.

In the United Nations system, the problem was identified and investigated beginning in the late 1940s, and addressed continually through the 1990s when long-lasting efforts by different bodies and agencies finally resulted in the adoption of the UN Convention on the Law of Non-navigational Uses of International Watercourses in 1997.

This monograph is the result of research aimed at highlighting the details of the initial period of the ILA’s efforts to respond to the situation. Its Rivers Committee was assigned in 1954 “to study the various legal, economic and technical aspects of rights and obligations between states as to the inland waters, […] with the purpose of elaborating practical recommendations for international arrangement”. Besides a review of the broader context in which the ILA efforts and activities were situated, the monograph is focused on detailed elaboration and analysis of the documents drafted by the Rivers Committee, which, under the strong supervision and precise guidelines of the management bodies of the ILA, led step-by-step to the approval of the famous Helsinki Rules on the Uses of the Waters of International Rivers in 1966. This is followed by a discussion about the Helsinki Conference and its resolution, and then a detailed analysis of each chapter of the Helsinki Rules. The concluding part of the monograph highlights the global acceptance and wide influence exerted by the Helsinki Rules on shared water resources and related disputes, in particular the UN Watercourses Convention.

The monograph points out that the Helsinki Rules were neither ideal nor complete. As a “delicate balance between widely divergent views”, the Helsinki Rules were subject to the scrutiny of two subsequent ILA committees, which were active until 2004. Those committees studied various topics and formulated a series of articles supplementary and complementary to the Helsinki Rules with the aim of updating, upgrading and revising certain details. In that way, the Helsinki Rules served as reliable ground for further exhaustive study in this field, what eventually resulted in the comprehensive and consistent set of ILA rules compiled in the Campione Consolidation of the Rules on International Water Resources, 1996 – 1999 (2000).

The monograph also briefly indicated the attempt of the ILA to revise its entire body of international water law compiled in the Campione Consolidation, through approval of the Berlin Rules on Water Resources (2004), which diverge substantially from the key principles as set out in the Helsinki Rules and all other ILA rules subsequently approved, and from the final output of the International Law Commission on the law of non-navigational uses of international watercourses (1996), the UN Watercourses Convention (1997), and from the ICJ judgment in the Case concerning the Gabčikovo – Nagymaros Project (1997) (see Berlin Rules Dissenting Opinion).

Finally, the monograph calls for further investigation and critical analysis and evaluation of the entire body of work by the ILA in the field of international water law, including the outputs of two later ILA committees and the background leading to the approval of the Berlin Rules. The author argued that such research might show that the Helsinki Rules, in the advanced, revised and enriched form, expressed in the Campione Consolidation, are a safe pivot, marking the way out from the confusion caused by emerging proliferation of wishful concepts and ideas in this still young branch of international law.

The monograph is dedicated to the memory of Dr Dante Caponera (1921-2003), and the other members and officers of the ILA Rivers Committee.

The entire article is available here.

 

Legal rights for rivers: new book explores the implications of these groundbreaking laws for water governance

December 3rd, 2018

The following essay by Erin O’Donnell provides an overview of her new book: Legal Rights for Rivers: Competition, Collaboration, and Water Governance. The book is now available for purchase here.

In 2017 four rivers in Aotearoa New Zealand, India, and Colombia were given the status of legal persons, and there was a recent attempt to extend these rights to the Colorado River in the USA. Understanding the implications of creating legal rights for rivers is an urgent challenge for both water resource management and environmental law. Giving rivers legal rights means the law can see rivers as legal persons, thus creating new legal rights which can then be enforced. When rivers are legally people, does that encourage collaboration and partnership between humans and rivers, or establish rivers as another competitor for scarce resources?

But legal rights for rivers are very new. To really understand what it means to give rivers legal rights and legal personality, we need evidence of what happens over a longer period. This book uses the example of the environmental water managers (EWMs) in Australia and the USA as a way to understand the implications of giving legal rights to rivers.

As individual organisations, EWMs have legal personality, and have been active in water resource management for over two decades. EWMs operate by acquiring water rights from irrigators in rivers where there is insufficient water to maintain ecological health. EWMs can compete with farmers for access to water, but they can also strengthen collaboration between traditionally divergent users of the aquatic environment, such as environmentalists, recreational fishers, hunters, farmers, and hydropower.

Figure 1: the paradox of legal rights: as legal protection goes up, this can lead to increasing complacency and an abdication of our responsibilities to look after the environment

This book explores how EWMs use the opportunities created by giving nature legal rights, such as the ability to participate in markets, enter into contracts, hold property, and enforce those rights in court. However, examination of the EWMs unearths a crucial and unexpected paradox: giving legal rights to nature may increase its legal power, but in doing so it can weaken community support for protecting the environment in the first place (Figure 1).

Understanding this paradox requires going back to basics, and considering how the environment has been constructed in law over time. The book develops a new conceptual framework to identify the multiple constructions of the environment in law, and how these constructions can interact to generate these unexpected outcomes. Although there are myriad and widely different definitions of the environment in law, there are three main constructions of the environment in law: (1) a socio-ecological concept, (2) a legal object, and, most recently, (3) a legal subject (Figure 2).

Figure 2: understanding the paradox of legal rights for nature requires an understanding of how the environment is constructed in law

 

By focusing on the way the environment is constructed in law, we can also start to identify the underlying cultural narratives, and the way those narratives can shape our legal response and drive legal reform. The legal object has no rights of its own, and links the concepts of legal weakness with the idea of being worthy of protection. The legal subject, on the other hand, does have legal rights, which generates an alternative narrative, where the environment can, and thus should, look after itself. These tensions have specific consequences for the environment, because of the initial construction as a highly flexible socio-ecological concept: the environment can be whatever it is defined to be in specific legislation, but it is also only ever what law articulates it to be. As a result, the overarching concept of what the environment is, and why it matters, is highly vulnerable to shifting social values (Figure 3).

Figure 3: tensions between the different constructions of the environment in law can lead to significant shifts in the broader socio-ecological concept

 

By examining the form and function of the EWMs in the USA and Australia, this book shows that changing cultural narratives about what the environment is, and why it does (or does not) deserve protection, can lead to large shifts in water law and governance.

This paradox is not, of course, a foregone conclusion of granting legal rights to rivers. The book draws on lessons from the EWMs, as well as early lessons from the new ‘river persons’, to show how to use the law to improve river protection and how to begin to mitigate the problems of the paradox.

The book is now available for purchase here.  To request a review copy, please complete the form here. Lecturers and instructors can request an e-book inspection copy here.

 

Of Rivers, Deities, and Legal Persons – A New Approach to Managing Freshwater Resources?

September 3rd, 2018

This essay is written by Gabriel Eckstein, Professor of Law at Texas A&M University, director of the TAMU Law Program in Natural Resources Systems, and director of the International Water Law Project. He can be reached at gabrieleckstein [at] law.tamu.edu.

Today, at least five rivers around the world – Whanganui in New Zealand, Yarra in Australia, Atrato in Colombia, Narmada in India, and Vilcabamba in Ecuador – enjoy some measure of independent legal recognition under national law.  Efforts to afford similar legal respect to the Ganges and Yamuna rivers in India (here and here) and the Colorado River in the United States (here and here) have also been sought.  The following is the last in a series of essays exploring this unique phenomenon (see first essay / second essay / third essay / fourth essay / fifth essay / sixth essay).  The purpose of the series was to engage in a dialogue and assess the merits and extent of such recognition, and to consider the possible ramifications for people and communities, and of course, the rivers protected under such actions.  What emerged is an insightful and diverse conversation that offered critical and constructive analyses, and which furthered the conversation over this novel legal approach to the management of critical freshwater resources.

Ganga - Hindu river Goddess of the Ganges River

Ganga – Hindu river goddess of the Ganges River

Questions Abound

As a foundational issue, Erin O’Donnell asked the quite fundamental question of why a river might need to protect itself.  In modern societies, people and communities have traditionally sought to protect natural resources through environmental laws and regulation, with varying results.  As such, it is unclear whether affording legal personality to rivers is intended to plug gaps that environmental regulations have failed to fill, is an evolutionary step in environmental protection, or possibly, is some more fundamentally progressive approach to relating people with their surroundings.  Notwithstanding, O’Donnell noted that affording a river a legal right to protect itself creates a paradox whereby the human obligation and burden to ensure that protection is lessened and possibly expunged.

Further scrutinizing such legal recognition, Ariela D’Andrea asserted in her essay that the diversity of mechanisms and components used to afford such legal recognition leaves much unclear in terms of the practicalities, implementation, efficacy, and enforcement of these actions.  Given the novelty of this approach for the management of rivers, D’Andrea raised a host of queries ranging from whether the recognition applies to the river, its basin, or even the aquatic and surrounding biodiversity, to whether a river, recognized as a legal person (possibly like a corporation), can now be liable for taxes, harm from flooding, and ensuring its own water quality and quantity.  In her essay, Julia Talbot-Jones further critiqued the phenomenon and questioned the mechanics of how the granting of legal personality for rivers could be operationalized.  She also highlighted the reality that the new rights of these water bodies could only be protected through institutional mechanisms acting on their behalf, as well as adequate resources to support such responsibilities.  As Talbot-Jones rightly suggested, legal rights without the means to protect them could simply become irrelevant.

Tangaroa - Maori god of rivers, lakes, and the sea and all that live within them

Tangaroa – Maori god of rivers, lakes, and the sea and all that live within them

The practicalities of implementation, however, are only some of the challenges facing the realization and appreciation of such action.  Both Virginia Marshall and Deborah Curran pointed out that while some of these efforts are couched in terms of values ascribed to indigenous communities, the steps taken may not necessarily comport with those values.   Both authors suggested that because of the unique relationship that indigenous communities enjoy with their natural surroundings including rivers and other freshwater resources (Marshall focusing on Australia’s Aboriginal Peoples, and Curran focusing on Canada’s First Nations), indigenous peoples could actually find the notion of a river holding legal personality completely antithetical to their cultural beliefs and norms.

In a similar vein, it may be reasonable to question whether the approach and mechanisms used to install legal personality to a river is actually based on the values of the local indigenous community, or rather on a broader perspective that encompasses the ideals of both indigenous and the broader citizenry’s perspective of sustainability and environmental protection.  While the former could manifest in mechanisms that emphasize individual and communal stewardship, prioritizing of indigenous and environmental concerns, and the installation of decisional authority in the collective citizenry or an appointed public body, the latter could result in regulation-based restrictions, priorities for human health, and decision-making authority assigned to a governmental agency.  Of course, the resulting mechanisms could also be a combination of both.  However, whether a particular approach is appropriate for a distinct locale will likely have to be determined case-by-case since conduct that is justified in one set of natural, cultural, and political circumstances may not be supportable in a different scenario.

Enki - Sumerian god of fresh water, as well as wisdom, intelligence, trickery and mischief

Enki – Sumerian god of fresh water, as well as wisdom, intelligence, trickery and mischief

Commonalities

Despite the distinct differences in approaches taken in the various case examples explored in these essays, it is worth noting that in all of them, one of the chief motivations behind the decisions taken was the sincere desire to ensure the existence and sustainability of an invaluable freshwater resource.  While some may debate the necessity to protect a particular river or watershed, it seems reasonable to acknowledge that such a conservation justification generally is both rational and defensible.  Hence, the resulting question that must be considered is whether the mechanisms used to achieve the particular objectives are appropriate and reasonable.  Again, this can only be understood and undertaken on an ad hoc basis.

Nevertheless, altruistic environmental priorities are not the only or sole influences that have resulted in the recognitions of rivers as legal persons.  In some instances, religious and cultural values may have helped inspire such outcomes.  As Julia Talbot-Jones explained, in the case of the Whanganui River, the justification also included the desire to resolve long-standing ownership claims by the Māori indigenous community.  In contrast, the decision by the High Court of the Indian state of Uttarakhand to recognize the Ganga and Yamuna Rivers as living entities, as well as resolution adopted by the Madhya Pradesh state legislature recognizing the Narmada River as a living entity, appear to be grounded, at least partially, in the Hindu faith.  While such objectives do not negate the sustainability rationale, in the case of the Whanganui River, it injected an additional distinct element that provided a critical impetus for legal recognition of the river, as well as complicated and lengthened the process that resulted in a quite unparalleled institutional and legal framework (the Whanganui River Claims Settlement 2017).  In the case of the Ganga and Yamuna rivers, the religious justification may have actually hastened the courts’ ruling, although questions about implementing that judgment ultimately lead India’s Supreme Court to stay that decision.

Achelous - Hellenistic god of the Achelous River

Achelous – Hellenistic god of the Achelous River

A further common factor that should be considered when examining the various examples is the assignment of guardianship or trusteeship for the river to a body whose responsibility is to represent the interests of the water body.  Such action is clearly based on the need to operationalize the legal standing criteria that applies to all persons under law, whether human, corporate, or otherwise.  However, as Katie O’Bryan indicated, there is a considerable range among the representative bodies discussed in the examples in terms of their structure, authority, and the resources allotted to support their responsibilities.  Nevertheless, similar distinctions and disparities can be identified in terms of representational capacity for corporations, as well as children and the mentally challenged, operating before the law.  Accordingly, the institutional mechanism created to protect the interests of rivers that have been afforded individual legal recognition, and especially legal personality, should serve as a basis for further comparison and analyses.

Conclusion

Whether rights of personhood recognized in rivers could lead to cleaner and more bountiful water for people and the nature is still unknown.  The judicial and legislative actions discussed in these essays are both novel and recent, and the complete range of outcomes, implications, and repercussions have yet to be fully ascertained.  One particular question not raised in this series is how this approach, in the face of a serious water deficiency, might balance the rights of people or a community to secure adequate supply of water against the sustainable needs of nature.  Considering the debilitating crisis in Cape Town, South Africa, and ongoing parched conditions in Afghanistan, Australia, Bolivia, Iran, Jordan, Mongolia, Morocco, Uruguay, western Canada, other parts of the world, it may be that recognizing individual rights in rivers may not be appropriate in all corners of the globe.

Nevertheless, the steps taken in Australia, Colombia, India, and New Zealand have not gone unnoticed.  Efforts to duplicate these decisions and outcomes have been explored in Chile, Nigeria, the United States, and other countries.  Moreover, they have become fodder for multiple legal and policy analyses, which are critically necessary to explore the viability and practicalities of such efforts.

The essays involved in this series on legislative and judicial actions taken to recognize some measure of independent legal personality under national law was undertaken precisely with the objective of furthering the assessment and discussion of this distinct new approach for the management of the world’s critical freshwater resources.  With this in mind, we welcome further commentary, analyses, and opinions in response to these essays.

Chalchiuhtlicue - Aztec goddess of water, rivers, seas, streams, and storms

Chalchiuhtlicue – Aztec goddess of water, rivers, seas, streams, and storms

Shared Watercourses and Water Security in South Asia: Challenges of Negotiating and Enforcing Treaties

August 27th, 2018

The following essay by Drs. Salman M. A. Salman and Kishor Uprety is a summary of their recently published monograph (under the same title), which appears in Vol. 3(3) 2018, pp. 1-100, of Brill Research Perspectives in International Water Law.  Dr. Salman is an academic researcher and consultant on water law and policy and Editor-in-Chief of Brill Research Perspectives, International Water Law. He can be reached at SalmanMASalman [at] gmail.com. Dr. Uprety is Senior Lawyer with the Asian Infrastructure Investment Bank and an Associate Editor of Brill Research Perspectives, International Water Law. He can be reached at Dr.kishoruprety [at] gmail.com.

 

A large number of rivers in the South Asia region are shared across borders. Afghanistan, Bangladesh, Bhutan, China, India, Nepal and Pakistan share more than two dozen major rivers. Conflicting claims over those transboundary watercourses is a major security challenge in the region. Indeed, shared watercourses have influenced South Asia’s geography and history, as well as riparians’ responses to the challenges of utilizing, managing, and protecting such water bodies. Because of scarcity, population growth, and climate change impacts, national calls for water security have become louder and more intense in each of these countries. Consequently, collaboration among the countries of South Asia for ensuring equitable sharing of such watercourses has not been optimal.

Map of South Asia's shared watercourses

Map of South Asia’s shared watercourses

In addition, other factors such as information sharing and lack of trust has exacerbated the differences. While most countries do not have reliable systems for data generation, those possessing some hydrological data consider them state secrets, restricting their exchange. Even when treaty obligations exist, data-sharing practices are ad hoc, and the range of information shared is limited. Thus, negotiating new transboundary water treaties amongst the South Asia countries has become a daunting task, and enforcing existing ones remains a real challenge.

With the above constraints in the background, the monograph provides an overview of the notion of water security in South Asia, and discusses the challenges as well as the opportunities for establishing governance frameworks for shared watercourses in the region.

The introduction of the monograph begins with an analysis of the concept of water security, and how the concept emerged and spread as a world-wide and complex phenomenon. It also discusses the challenges the concept imposes in designing and implementing governance regimes for shared watercourses. To further set the stage and focus, and to establish a better appreciation of the challenges, the introduction then discusses the geopolitical setting of the region.

The first part of the monograph starts by discussing the treaty practices in South Asia regarding their shared watercourses. Each instrument is presented as a unique document and effort, finalized after lengthy negotiations with each of the riparians’ specific objectives, interests and strategies in mind. In that context, the monograph reviews the regimes for shared watercourses already in force, as well as those that are under discussion and consideration.

The Indus and the Ganges river basins are the two regimes that are currently in force. The discussion of the Indus Basin regime focuses on the historical background and the complexities involved in the unusually long process of the treaty negotiations. The discussion involves the role of the World Bank, which provided its good offices to the parties, and the reasons for success of the Bank’s intervention. This is followed by an analysis of the treaty provisions, particularly its unique dispute resolution mechanisms. In this context, the monograph also discusses the several cases of “differences” and “disputes” that have emerged between the two riparian parties─India and Pakistan─and analyzes how the treaty provisions facilitated their resolution. This part of the monograph also elaborates and critiques the role of the World Bank in the dispute resolution process.

The second regime in force discussed in the monograph relates to the Ganges Basin, including some of its tributaries. Several treaties have been concluded for the governance of the Basin. The monograph reviews and analyzes each of them, including the history of the negotiations and the main provisions of each treaty, with a critical analysis of implementation.

The discussion also covers the efforts in South Asia, which have been ongoing for several decades, to establish regimes to govern some other important shared watercourses. Negotiations amongst the riparian countries on these basins have been difficult and the outcomes have been poor. In this context, the monograph reviews the regimes pertaining to the Teesta and the Brahmaputra basins, and highlights the difficulties that have emerged.

The subsequent part of the monograph deals with the 1997 UN Watercourses Convention. It focuses on the position of each of the South Asian countries vis-a-vis the Convention, which, interestingly, none has become a party to. The monograph discusses the reasons for such positions, and analyzes the countries’ malaise, as well as their specific concerns regarding the Convention.

The conclusion of the monograph recapitulates and highlights the main problematic situations of South Asia’s shared watercourses and analyzes the prospects for addressing them. In so doing, the conclusion provides some concrete suggestions derived from experiences in other countries and shared basins. The conclusion also includes some recommendations that can assist in enhancing cooperation, mutual trust and understanding amongst the South Asia riparians, and strengthening and consolidating of their achievements on their shared watercourses.

The monograph is dedicated “To the memory of Professor Charles B. Bourne (1921 – 2012); one of the pioneers and innovators in the field of international water law.”

The entire article is available here.

 

Countdown to the Guarani Aquifer Agreement coming into force: will it be effective in promoting transboundary groundwater governance?

June 18th, 2018

The following essay is by Pilar Carolina Villar, Professor of Environmental Law at Federal University of São Paulo. She can be reached at pcvillar [at] gmail.com.

The signing of the Guarani Aquifer Agreement (Portuguese / Spanish / English [unofficial]) on August 2, 2010, by Argentina, Brazil, Paraguay and Uruguay was received by the water community with excitement due to the few number of treaties dedicated to transboundary aquifer cooperation, the absence of a water conflict, and the short time it took to secure the signatures after the end of the Guarani Aquifer System Project. In 2012, Argentina and Uruguay ratified the treaty with the promulgation of Law n° 26.780/2012 and Law n° 18.913/2012, respectively. Thereafter, the Agreement faced a period of stagnation until May 2017 when Brazil ratified it with Legislative Decree n° 52/2017. Almost a year later, in April 2018, Paraguay ratified the Agreement when it approved Law nº 6037/2018.

After almost 8 years, the Agreement is in the final stage of coming into force, although Paraguay has yet to deposit its instrument of ratification with Brazil, which is the official depository for the Agreement. According to Article 21, the Agreement will officially enter into force on the thirtieth day after that deposit occurs.

Schematic hydrogeological map of the Guarani Aquifer System. Source: The Guarani Aquifer Initiative – Towards Realistic Groundwater Management in a Transboundary Context, Case Profile Collection Number 9. Sustainable Groundwater Management: Lessons from Practice (Nov. 2009)

The Agreement’s ratification by the four countries represents a new phase in the process of cooperation among the Guarani countries. It allows implementation of the Guarani Aquifer Commission, and the possibility of restarting cooperative projects that will promote the development of knowledge and management of the Guarani Aquifer System. However, considering the long ratification process of the Agreement and the role of other transboundary water organizations in the La Plata Basin, should we be optimistic in the context of transboundary aquifer cooperation?

In view of the lack of international agreements for the joint management of transboundary aquifers, the ratification of the Agreement represents a milestone to encourage more countries in South American to include groundwater cooperation in their practice of international affairs. Moreover, the ratification opens a path for the establishment of a common institutional arrangement dedicated exclusively to groundwater issues among the four countries. The existence of an international agreement could also be used as a positive force for attracting international funds from organizations like the Global Environment Fund, World Bank, Organization of American States, UN Environmental Programme, and UN Development Programme, which may be interested in supporting the operationalization of the only international groundwater cooperative arrangement in South America. Finally, the Guarani Aquifer States could become more interested in promoting cooperative projects and actions regarding the aquifer since the Agreement will soon be binding on all of them.

The future of the Guarani Aquifer Agreement is dependent especially on the will of the countries to enforce the agreement’s institutional framework. On this point, the projections are not necessarily encouraging. While the Guarani Aquifer Commission is the pillar of the Agreement, it is unclear what its powers will be or whether it will have legal personality under international law. Moreover, it is impossible to foresee when the countries will establish the Statute of the Commission. Regardless, it does not seem to be a priority in the short term, especially considering the current political and economic conditions of the Guarani countries.

Even with the Guarani Aquifer Commission, cooperation should not be taken for granted. The La Plata Basin has a complex institutional system made up of fourteen organizations that have legal personality under international law and four technical committees. All of them face difficulties in consolidating themselves as leading players in cooperation over the La Plata basin. In fact, the amount of institutions contrasts with the relatively low number of joint actions and products resulting from their work. Even the Intergovernmental Coordinating Committee of the Countries of the Plata Basin, which is the oldest water-related organization in the La Plata Basin area, still has problems receiving financial support from its member countries, and largely depends on international funds to conduct studies in the basin. As a result, the Guarani Aquifer Commission runs the risk of becoming another water-related organization with very limited influence.

Implementation of the Agreement and creation of the Guarani Aquifer Commission could benefit from the existence of CeReGAS – Centro Regional para la Gestion de Aguas Subterráneas (Regional Center for the Management of Groundwater), an international center located in Montevideo, Uruguay, that is dedicated to promoting groundwater management and cooperation in the regional context. While CeReGAS and the Guarani Aquifer Commission have different mandates, since the first is a regional center supported by UNESCO and the other is an organization established by an international treaty restricted to the Guarani Aquifer countries, they might build an alliance to optimize funding and technical resources. Their scope is closely related since both focus their efforts on the promotion of groundwater cooperation, one in the South American context while the other in the Guarani Aquifer region. CeReGAS has also developed a case study on the Guarani Aquifer, and has produced documents on and disseminated the results of the Guarani Aquifer System Project.

The Agreement soon will come into force and become a binding instrument for the Guarani Aquifer States. However, the questions of when and how it will be implemented remain unanswered. The challenges to applying the Agreement are some of the same facing other water agreements in the region: overcoming the tendency of building fragile water-related institutions, improving cooperation between institutions or between States, expanding transparency in actions of cooperation, and guaranteeing financial support. In this sense, the first step for the countries involved is to establish the Commission and define its capacity, a mission that could be facilitated by the presence of CeReGAS. Then, the States involved must overcome the traditional challenges related to political will, institutional capacity and efficiency, as well as the provision of funds to support the Commission and the execution of cooperative projects. Only time will tell if the Guarani Aquifer States will cooperate successfully over the joint management of the Guarani Aquifer.

The Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic), the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ), Indigenous Rights and River Rights

June 4th, 2018

The following essay is the sixth 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 / fourth essay / fifth 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. Katie O’Bryan, a Lecturer at Monash University in Melbourne, Australia. She can be reached at Katie.OBryan [at] monash.edu.

Introduction

Historically, Victoria’s water laws have not recognised Aboriginal people as having a role in managing and protecting Victoria’s waterways. That has now changed with the enactment of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic). This Act is significant because not only does it recognise a role for Aboriginal people in the management and protection of the Yarra, it is also said to give an independent voice to the river.

The Independent Voice of the River and International Developments

This idea of nature being given an independent voice has come to prominence recently, the most well-known example being the granting of legal personhood to the Whanganui River, Te Awa Tupua, with an entity called Te Pou Tupua to be the human face of the river and to represent its interests.

The Yarra River. Photo courtesy of Katie O’Bryan.

Giving legal personhood to a natural object with a guardian to protect its interests is an idea that has existed in theory since 1972 when Christopher Stone wrote his famous article ‘Should Trees Have Standing? ‒ Toward Legal Rights for Natural Objects’. Stone’s idea has been gaining momentum over the last few years, including several recent court rulings which have recognised the rights of rivers, namely the Atrato River in Columbia, and the Ganges and Yamuna Rivers in India. However, with the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ), Aotearoa New Zealand was the first country to enact legislation giving legal personhood and an independent voice to a river.

But how similar are the Victorian and New Zealand Acts, and what do they mean for the role of Indigenous people in river management?

Key features of the Yarra River Protection (Wilip-gin Birrarung murron) Act

Before outlining the Act’s key features, it is important to note that the Wurundjeri people, the traditional owners of much of the country through which the Yarra River flows, were involved in the development of the proposal for the Act. And, in a first for Victoria, Wurundjeri elders were present and spoke in support of the bill when it was introduced into Parliament.

Against that backdrop, the features of relevance for Aboriginal Victorians in the Yarra River Protection (Wilip-gin Birrarung murron) Act are outlined as follows.

The first is that the Act treats the Yarra River as one living and integrated natural entity. This holistic approach to the protection of the Yarra reflects Aboriginal conceptions of the Yarra; the Act’s preamble noting that it (the Yarra) is alive, has a heart and a spirit, and is part of their Dreaming. This is also evident from the Aboriginal language used in the title, ‘Wilip-gin Birrarung murron’, which means ‘keep the Birrarung [Yarra] alive’ in Woi-wurrung, the language of the Wurundjeri.

Secondly, to reflect the Yarra as a single entity, the Act provides for the development and implementation of an overarching strategic plan to guide the future use and development of the Yarra. The strategic plan will be developed by a lead agency appointed by the Minister (Melbourne Water) and will be informed by a long-term (50 year) community vision. Both the strategic plan and community vision require active public participation in their development.

The strategic plan will also be informed by the Yarra protection principles. These principles include general, environmental, social, cultural, recreational and management principles. Statutory decision-makers along the Yarra must have regard to these principles when performing their functions or exercising their powers in relation to the Yarra. Importantly, the cultural principles highlight Aboriginal cultural values, heritage and knowledge, and the importance of involving traditional owners in policy planning and decision-making.

The Act also establishes the Birrarung Council, the ‘independent voice for the river’. The Council comprises 12 community and skill-based members, two of whom must be chosen by Wurundjeri people. This is the first time in Victoria that Aboriginal people have been given a legislatively mandated voice in river management. Significantly, the Council is precluded from having any government representatives as members.

The Council has two main roles. The first is to provide advice to the Minister generally on the administration of the Act, and more particularly on the protection of the Yarra and on the strategic plan.

Its second role is to advocate for the protection and preservation of the Yarra. This role, along with the prohibition on government representatives on the Council, forms the basis for it being described as the independent voice of the river.

The Whanganui River. Photo Courtesy of Katie O’Bryan.

The Yarra River Protection Act 2017 and the Te Awa Tupua Act 2017 compared.

So how does the New Zealand legislation differ from the Victorian legislation given that both are said to give an independent voice to the river, and both emphasise Indigenous relationships with the river?

A major difference lies in the status of the river itself. Although the Yarra River Protection Act provides for the declaration of the Yarra for the purpose of protecting it as one living and integrated natural entity, it does not give the Yarra independent legal status with all of the rights and liabilities that come with that status. Accordingly, the Birrarung Council, although able to advocate on behalf of the Yarra, is not its legal guardian. It is not given any legislative power to exercise the rights, or take responsibility for any liabilities, of the Yarra River. It is essentially an advisory body only. The Te Awa Tupua Act, on the other hand, specifically provides for the Whanganui River to have ‘all the rights, powers, duties, and liabilities of a legal person,’ which are exercised on behalf of the river by Te Pou Tupua, the human face of the Whanganui River. This means that unlike the Birrarung Council, Te Pou Tupua, can initiate legal proceedings to protect the Whanganui River if the River is damaged or if any of its values are compromised.

That leads to another distinction between the Yarra River Protection Act and the Te Awa Tupua Act. Both statutes recognise the river as single living and integrated natural entity requiring protection. However, the river values to be protected in the Te Awa Tupua Act (called Tupua te Kawa) are intrinsically Māori oriented in their conceptions of the River. On the other hand, the river values to be protected in the Yarra River Protection Act, as reflected in the Yarra protection principles, are more wide-ranging, encompassing not just Aboriginal cultural values, but also post-settlement cultural diversity and heritage, as well as the values embodied in the environmental, social, recreational, management and general protection principles.

Finally, the Birrarung Council was established to ensure that various different community interests are involved in protecting and promoting the Yarra River, hence the need for it to have 12 members. Te Pou Tupua, with only two members (one appointed by the government and one by iwi (referring to the Māori tribes) with interests in the Whanganui River), was established to represent the Whanganui River, not community interests – that role is given to a different entity, Te Kōpuka, which has 17 members including up to six Māori members.

What are the outcomes for Indigenous river management?

The granting of independent legal status to the Whanganui River as part of the Treaty settlement in the Te Awa Tupua Act does not give the Whanganui Iwi a direct say in the management of the Whanganui River, because the members of Te Pou Tupua act on behalf of the River, not on behalf of their respective appointees. In that regard, it is not necessarily of benefit to the Māori. However, this is tempered by the fact that the river values to be upheld by Te Pou Tupua are intrinsically Māori in orientation, and that other aspects of the settlement, such as Te Kōpuka, and the role of the Whanganui Iwi’s post-settlement governance entity, do provide for Māori participation in the river’s management.

The Yarra River Protection Act does not extend as far as the Te Awa Tupua Act in giving independent legal status to the Yarra. Nor does it create legal capacity in the Birrarung Council to seek redress in court for any damage done to the Yarra for failing to comply with the Yarra protection principles. It does, however, give an advisory voice to Aboriginal Victorians in the management of the Yarra. Although the strength of that voice has yet to be tested, it does signal a shift in the future of river management in Victoria towards one which is more inclusive of Aboriginal people.

Further reading:

Katie O’Bryan, ‘Giving a Voice to the River and the Role of Indigenous People: The Whanganui River Settlement and River Management in Victoria’ (2017) 20 Australian Indigenous Law Review (advance)

Katie O’Bryan ‘New law finally gives voice to the Yarra River’s traditional owners’ The Conversation, 25 September 2017

 

Independent Legal Personhood of Rivers or Relational Stewardship?: A Perspective from 20 Percent of the Worlds Freshwater (Canada) and the Indigenous-Colonial Legal Tensions that Govern it

May 23rd, 2018

The following essay is the fifth 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 / fourth 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 Deborah Curran, Associate Professor, Faculty of Law and School of Environmental Studies and Acting Executive Director, Environmental Law Centre, at the University of Victoria in British Columbia, Canada. She can be reached at dlc [at] uvic.ca.

In Canada, the country with 20% of the world’s freshwater, our colonial legal history and the current expression of both colonial and Indigenous laws make for a unique context that does not necessary lend itself to the application of independent legal status or personhood for natural features such as rivers and mountains. While amendments to colonial law could grant legal status to rivers, many Indigenous legal orders place Indigenous peoples in a stewardship or caretaking relationship with water that they view as fundamental to their laws and culture. Devolving authority to an independent representative or tribunal and separating Indigenous people from direct responsibility for their environment is viewed as harmful to both people and ecosystem. Indigenous communities are responsible for maintaining relationships as part of their legal and cultural duties. Creating a third-party structure, even with representation, may not adequately adhere to Indigenous law. In addition, once communities agree to devolve decision-making authority to a third-party representative of a river, there is always the danger that the Crown – federal and provincial governments – may take the position that Indigenous communities then have less say in proposed development and impacts on the river. How independent structures representing a river could limit or change evolving Aboriginal rights and title is a significant risk for Indigenous communities.

There is considerable energy going into revitalizing and expressing Indigenous laws in Canada, including entering into government-to-government agreements that amend colonial law. These acts of Indigenous law could result in protections for the natural environment and specific features such as rivers that are similar to those promised by granting independent legal status to rivers and the natural environment. At least in the medium-term, the focus in Canada is on revitalizing Indigenous laws to be an effective articulation of Indigenous authority and counterpoint to colonial environmental governance.

Environmental Protection and Aboriginal Rights and Title in Context

There is no right to a healthy environment in Canada under current state or colonial law. The environment, except for fish, is largely the responsibility of provincial and territorial governments who have created a patchwork of different laws regulating the extraction of natural resources, parks, and pollution. All water law in Canada focuses on permitting the extraction of water rather than planning for watershed health, and none acknowledge Aboriginal rights to water as part of the water balance in a region.

Since 1982, the federal Constitution Act affirms and acknowledges Aboriginal and treaty rights. Colonial courts have interpreted the scope of these rights to include the right to harvest for food, social and ceremonial purposes and carry out cultural practices in one’s historic territory. Beyond this bare right to harvest for a moderate livelihood and undertake activities that are “distinctive to the culture” of an Indigenous community, most court cases exploring Aboriginal rights focus on the Crown’s requirement to consult and accommodate First Nations when the provincial or federal governments make decisions about applications to use resources in the traditional territory of an Indigenous community. This duty is a procedural right and does not a guarantee a substantive outcome of a healthy environment, intact ecological relationships, or the ability to exercise one’s Indigenous laws.

Recently, however, First Nations and colonial courts have turned to Indigenous laws and Aboriginal rights, as well as their expression in government-to-government agreements, as legitimate limitations on the decision-making authority of the federal and provincial governments, and as a way to challenge the natural resource regimes, including for water, under colonial law.

Indigenous Law

As a multi-juridical society, there is a resurgence in the expression of Indigenous law in Canada, the foundation of which are the relationships and responsibilities between land, plants, animals, fish, marine ecosystems, and humans. Colonial law stands in contrast to Indigenous law, which encompasses the existing and evolving laws of each Indigenous society. Indigenous groups and communities in Canada continue to define and use their own laws. The land- and water-based origin of many Indigenous laws establish relationships and rules for protection, harvesting, cultivation, and trade of ecosystem elements. The origins of Indigenous laws flowing from ecosystem-based relationships also create the overarching governance processes through which entitlements to use, harvesting practices and sharing with adjacent communities are mediated.

The Tsleil-Waututh Nation conducted their own environmental assessment of the Trans Mountain pipeline expansion proposal using their Stewardship Policy derived from their Indigenous laws as the assessment framework. Tsleil-Waututh and Coast Salish Legal principles include the “sacred obligation to protect, defend, and steward the water, land, air, and resources of our territory…the responsibility to maintain and restore conditions in our territory that provide the environmental, cultural, spiritual, and economic foundation our nation requires to thrive”. The Stewardship Policy requires the Nation to evaluate the potential negative effects of proposed development, and if those effects do not exceed “Tsleil-Waututh legal limits”, to assess the benefits of the project for the community. As part of the assessment process, the Tsleil-Waututh First Nation revealed their stewardship obligations in their territory, based on their Indigenous laws and operationalized through their Burrard Inlet Action Plan, which includes regulatory action and habitat restoration by the Tsleil-Waututh.

The Tsleil-Waututh Nation’s assessment of the trans mountain pipeline (image reproduced with permission of Sacred Trust Initiative Tsleil-Waututh Nation)

Likewise, the Stk’emlúpsemc te Secwépemc Nation also undertook a community assessment of the proposed Ajax mine near Kamloops, British Columbia. Concluding that the Nation would not give its free, prior and informed consent for the project, the process included the Nation exercising its own Indigenous environmental governance to strike an assessment panel. The decision document underscores the importance of the ethics of stewardship embedded in socio-ecological relationships and expressed in Secwepemc lands and resource laws.

Other examples of expressions of Indigenous laws that challenge colonial administrative and legal processes abound in Canada, particularly on the west coast in British Columbia. Many of these expressions involve water as the basis of life. The Nadleh Wut’en and Stellat’en First Nations, as well as the Okanagan Nation Alliance, have made declarations of water law and are developing programs and policies flowing from these declarations. A central tenet of these expressions of law is the relationship of these communities to their lands and waters, and their ongoing responsibilities to take care of the ecosystem’s health.

Cautionary Approach to Legal Personhood

Currently in Canada, there is a movement to revitalize Indigenous laws and to enable those laws to express jurisdiction, sovereignty and interact with colonial law as one of the long-term results of reconciliation. Permitting the full expression of Indigenous laws may mean granting legal status to some rivers as part of government-to-government agreements, however, such an approach would follow first the concrete expression of Indigenous legal orders and long-term discussions about the appropriate ways to enliven those orders in conversation with colonial law.

A legitimate concern is that colonial legal processes or governments could weaken the intent of legal status for rivers vis a vis evolving claims for Aboriginal rights and title. While Indigenous communities would sign-on to such an approach as a way to secure better protection for the natural environment, and thus the underlying conditions of their Aboriginal rights such as fishing, hunting, gathering, and ceremonial practices, the Crown may argue that First Nations’ interest in applications for development or extraction of natural resources is diminished because the river had independent representation. Indigenous influence on potential projects could be limited to direct impacts to Indigenous people and not the environmental health of the river as an ancestor, spiritual entity or condition of life.

There may be opportunities in the medium- to long-term where expression of Indigenous laws include government-to-government agreements that point to legal personhood, as was the case in New Zealand. Several productive government-to-government agreements exist in Canada. For example, the Haida Nation entered into the Kunst’aa guu – Kunst’aayaa Reconciliation Protocol with the Province of British Columbia to create the Haida Gwaii Management Council. The Council makes decisions about forestry and heritage sites, and is composed equally of appointees of the provincial government and Haida Nation, with decisions made by consensus.

Another example is the Great Bear Rainforest Agreements between the seven First Nations in the Central Coast of British Columbia and the provincial government, which agreed to return 80 percent of the landscape to old growth forest over a 250-year timeframe and to support a conservation economy. While the legal mechanisms in colonial law for realizing these agreement are complex, the provincial government operationalized the forestry commitments through the Great Bear Rainforest (Forest Management) Act, which establishes the annual allowable cut for the area as agreed to pursuant to ecosystem-based management. Much of the landscape is designated in a new type of park called conservancies that permit the exercise of Aboriginal rights.

Finally, granting independent legal status and a voice to a river might make sense in unique areas where there are many overlapping claims and legal structures affecting a body of water, and where decision-making authority and priorities require clarity. An example is the Peace Athabasca Delta, a UNESCO World Heritage site and part of the larger Peace-Athabasca-MacKenzie River system. Flowing through three provinces, two territories, and dozens of treaty and non-treaty Indigenous traditional territories, it is affected by some of the largest industrial tar sands and hydroelectric projects in Canada. While colonial legal processes have failed to provide effective governance for one of the world’s most important rivers, perhaps an independent governance body for the River itself could force reparations.

Further Reading

Renata Colwell, Savannah Carr-Wilson, Calvin Sandborn. Legal Personality of Natural Features: Recent International Developments and Applicability in Canada

Deborah Curran. ‘Legalizing’ the Great Bear Rainforest: Colonial Adaptations Towards Conservation and Reconciliation (2017) 62:3 McGill Law Journal 813-860

Indigenous Law Research Unit. Indigenous Law Videos

Val Napoleon. What is Indigenous Law?

 

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.

 

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.