Legal rights for rivers: more power, less protection?

April 23rd, 2018

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

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

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

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

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

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

 

Murray River

Emerging narratives: competition and collaboration

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

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

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

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

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

The paradox of legal rights for rivers

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

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

Hope for the future?

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

The Yarra River at Pound Bend

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

 

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

 

Further reading:

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

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

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

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

 

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

April 16th, 2018

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

 

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

Transboundary Watercourses in West Africa

Regulated

 

Transboundary WatercourseRiparian States
Niger River BasinNigeria, Niger, Burkina Faso, Côte d’Ivoire, Benin, Cameroun, Guinea, Mali, Chad
Lake Chad BasinCameroun, Nigeria, Chad, Central African Republic, Niger, Libya
Volta River BasinGhana, Burkina Faso, Benin, Togo, Côte d’Ivoire and Mali
Senegal River BasinSenegal, Guinea, Mali, Mauritania
Gambia River BasinGambia, Guinea, Guinea Bissau, Senegal
Koliba-Korubal River BasinGuinea and Guinea Bissau

Non-Regulated

 

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

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

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

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

The entire article is available here.

 

Overturning aqua nullius – An Aboriginal perspective on personhood

April 9th, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further Readings

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

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

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

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

 

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

March 26th, 2018

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

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

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

Formalizing the rights of nature through legislation

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

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

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

Formalizing the rights of nature through judicial process

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

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

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

Future opportunities

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

Critical questions remain

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

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

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

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

Further reading:

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

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

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

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

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

 

 

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

January 15th, 2018

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

 

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

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

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

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

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

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

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

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

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

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

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

 

2017 – The Year of Water Law

October 6th, 2017

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

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

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

eckstein_gabriel1Professor Gabriel Eckstein’s leading role as the Chair of the International Scientific Committee of the IWRA was widely acknowledge with deep appreciation by the IWRA in Cancun. The Committee was shouldered with the responsibility of organizing the IWRA Cancun Congress which turned into a major success, attended by more than 1,400 experts who presented and discussed more than 400 papers. Acknowledgement of Gabriel’s leading role was made during both, the opening and closing sessions of the Congress.

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

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

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

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

September 25th, 2017

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

 

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

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

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

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

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

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

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

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

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

The entire article is available here.

New Book Explores the International Law of Transboundary Groundwater Resources

September 17th, 2017

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

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

 

TBA Map - colour

 

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

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

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

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

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

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

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

 

Disputes over International Watercourses: Can River Basin Organizations make a Difference?

July 21st, 2017

The following essay by Sabine Blumstein and Susanne Schmeier is a summary of a recently published book chapter titled “Disputes Over International Watercourses: Can River Basin Organizations make a Difference?”. Ms. Blumstein works as a Project Manager at adelphi. Ms. Schmeier is Coordinator for Transboundary Water Management at the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). They can be contacted at: blumstein[at]adelphi.de.

 

Book coverDisagreements or even full-fledged disputes over the use of water resources in shared basins have increasingly made headlines in the past years. Developments in the Mekong, Nile, Syr Darya, Indus and other basins have led more and more scholars, as well as policy-makers and journalists, to warn of the risk of water conflicts or even wars. This revives – albeit in a more informed manner – the water wars debate of the early 1990s. While much progress has been made since then – especially through the creation and institutionalization of cooperative arrangements in many shared basins – disputes nonetheless continue to occur. And they do occur even in basins with River Basin Organizations (RBOs) in place, which have often been set up to solve, mitigate or prevent such disputes.

However, research on transboundary river basin management as well as empirical evidence from basins around the world suggest that RBOs do make a difference. They provide a variety of direct and indirect mechanisms for dispute resolution, as discussed in a recently published chapter which appeared in “Management of Transboundary Water Resources under Scarcity. A Multidisciplinary Approach”. In this chapter, the authors shed light on how RBOs engage in the solution of disputes that arise over water resources in transboundary basins. And they show that it is not dispute-resolution mechanisms in the narrow sense – often identified as the key if not the only instruments RBOs provide – that make a difference in whether a conflict is solved peacefully in a cooperative manner. Instead, it is the broader cooperative framework of RBOs that matters.

The authors review existing dispute resolution mechanisms of international RBOs around the world in a comprehensive manner. Their research indicates that more than 50% of the 121 analyzed RBOs have a dispute resolution mechanism in place – seemingly a good starting point. Among those, they identify three broader categories of RBO dispute resolution mechanisms: bilateral negotiations between those RBO members involved in a disagreement; RBO-internal mechanisms; and external actors’ involvement. Often, states have opted to establish more than one step in the respective dispute-resolution mechanism, structuring the processes in two instances with different mechanisms to be applied. For instance, bilateral negotiation between disputing parties (facilitated by the RBO) are often followed by a possible engagement of external actors – both 3rd party mediators and judicial ones.

The authors also provide explanations for why dispute resolution mechanisms vary around the world (in terms of existence in the first place, but also in design). Often, it is the history of cooperation (also beyond the water sector) that determines both the existence as well as the exact design of dispute resolution mechanisms. The high share of dispute resolution mechanisms in African RBOs, for example, can be explained by the past conflicts found in many African basins as well as the high presence of international donors, which often consider well-defined dispute-resolution mechanisms as a prerequisite for successful cooperation. In Europe, on the other hand, the existence of cooperation mechanisms (including specific instruments for solving disputes) in many issue-areas has limited the need for well-defined dispute resolution mechanisms within specific basins and RBOs.

Regional distribution of dispute-resolution mechanisms in RBOs

    Regional distribution of dispute-resolution mechanisms in RBOs

In the second part of the chapter, the authors analyze two conflicts in greater detail in order to shed more light on how exactly RBOs make a difference in solving or mitigating disputes in shared basins. For the Mekong River Basin, they find that while the Mekong River Commission’s (MRC) dispute resolution mechanisms themselves (see Art. 34 and 35 of the 1995 Mekong Agreement) might seem insufficient for addressing issues as complex as recent hydropower developments and related inter-state conflicts, the MRC provides ample other tools for ensuring that such disputes get addressed in a cooperative manner and on the basis of comprehensive technical data and information. Although having been criticized by many scholars, the MRC’s Procedures for Notification, Prior Consultation and Agreement (PNPCA) and the processes established around them (e.g. the identification of environmental and socioeconomic baselines, the establishment of guidelines for impact mitigation, etc.) have ensured that disagreements have been handled in a rather cooperative manner. This is particularly obvious if compared to similar situations of unilateral hydropower development in other basins around the world.

For the Nile River Basin, the authors find that the Nile Basin Initiative (NBI) did not directly contribute to diplomatic negotiations or any other form of direct resolution of the conflict around the Grand Ethiopian Renaissance Dam (GERD), which can partly be explained by the absence of any NBI dispute resolution mechanism. In addition, the lack of any notification mechanism or requirement to exchange data/information on planned infrastructure measures which could potentially impact downstream countries, prevented the NBI to play any significant role in averting the dispute in the first place. Despite this limited role in conflict prevention and direct diplomatic engagement, NBI played an important role in defusing the conflict through broader activities around data and information sharing and increasingly distributing this knowledge to the broader public. The RBO’s activities regarding knowledge distribution and more neutral reporting through national media is an important contribution to de-securitize national discourses around the construction of GERD and hence a precondition for any final resolution of the dispute.

While the findings reveal that the existence of specific dispute resolution mechanisms in a narrow sense does not necessarily influence the success of dispute resolution and depends on a number of other intervening factors, RBOs as a whole do matter in 2addressing water-related conflicts. This is because RBOs provide a range of instruments beyond pure dispute resolution mechanisms: amongst others, they provide platforms for negotiation and exchange, data and information exchange or notification procedures. These instruments are of key importance to solve, contain or even prevent conflicts. Water practitioners and policy actors should therefore not exclusively focus on the specific dispute resolution mechanisms provided by RBOs but be aware of and actively use the broader repertoire of governance instruments provided by RBOs to avoid and solve evolving disputes in transboundary river basins.

 

The Fairness ‘Dilemma’ in Sharing the Nile Waters: What Lessons from the Grand Ethiopian Renaissance Dam for International Law?

June 30th, 2017

The following essay by Dr. Zeray Yihdego is a summary of his recently published monograph (under the same title), which appears in Vol. 2.2, 2017, pp. 1-80, of Brill Research Perspectives in International Water Law. Dr. Yihdego is a Reader in public international law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego [at] abdn.ac.uk.

The Nile, the longest River in the world, is shared by eleven riparian states, including Egypt, Sudan, South Sudan and Ethiopia.  Ethiopia contributes about 86% of the Nile waters, while Egypt (and to a certain extent Sudan) rightly or arbitrarily use most of the waters. Rightly because the climate and dependency of the two downstream countries on the Nile may be used to justify their historic or existing (lion) share. Arbitrary because other riparian states with millions of people who live within the basin are denied their equitable share of Nile water resources and socio-economic development needs. The construction of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia on the Blue Nile is justified by Ethiopia based on equitable utilisation and crucial development needs, while questioned (until March 2015) by Egypt as a threat to its ‘historic’ water use rights.

This monograph articulates the key arguments and messages of enquiring into the fairness dilemma in connection with the construction, reservoir filling, and to some extent, future operation of the GERD, in light of relevant colonial-era Nile treaties, post-1990 Nile framework instruments, and international water law.

Nile_Map_UpdatedAfter providing factual, political and historical context to the GERD case in the Introduction, the monograph sets out the theoretical and normative framework around Thomas Franck’s fairness principle, and international water law (IWL), as primarily featured in the 1997 United Nations Watercourses Convention (UNWC). Franck’s theory of fairness uses procedural legitimacy (or right process) and distributive justice as two fundamental features of fairness.  These are supported by the rejection of making absolute claims and the possibility of accommodating inequality among states, as caveats to the fairness principle. It is argued that IWL, in general, and the UNWC provide rules and principles that specifically fit into the principle of fairness in all its aspects, although there is no evidence to suggest that inequality is tolerated or promoted in international (water) law.

Given that none of the Nile basin states is a party to the UNWC, and notwithstanding the relevance and application of customary international water law to the GERD, the monograph resorts to dealing with the Nile Basin Initiative and the Nile Basin Cooperative Framework Agreement (CFA), and argues that the CFA, either as a treaty regime or a codification of customary watercourses law, represents an emerging Nile basin legal framework with a potential to addressing questions of fairness in the basin. As the CFA has not entered into force and Egypt and Sudan do not constitute part of the process, however, the fairness of the GERD cannot be judged form the CFA perspective.

Following a thorough investigation of the fairness of the 1902 Nile Treaty, the 1993 Ethio–Egyptian Framework instrument, and the tripartite Declaration of Principles (DoPs) on the GERD signed by Ethiopia, Sudan and Egypt in March 2015, the monograph submits that the 1902 and 1993 instruments do not provide a fair content and system for the concerned parties, albeit for different reasons. While the 1902 Nile Treaty is inherently arbitrary, and thus not compatible with the notion of fairness, the 1993 instrument incorporated modern principles of IWL, but not sufficiently, and lacks specificity of rights and duties of the two countries.  In contrast, the DoPs is founded on the globally accepted principles and rules of IWL and has

Grand Ethiopian Renaissance Dam

Grand Ethiopian Renaissance Dam

embraced both relevant content and legitimate process. The content of the DoPs includes the adoption of equitable utilisation and no significant harm principles. Similarly, the process agreed to in the DoPs includes the duty to exchange data and information, establishment of a National Technical Committee, the use of foreign consultancy firms and the use and endorsement of the work of an International Panel of Experts (IPoE).  All these, although not without challenges, have been negotiated in good faith, with equal participation of all concerned.

Based on this analysis, the monograph submits that:  the GERD is a symbol of a fair share of the Nile waters, the realization of which depends on, inter alia, an appropriate economic return and prevention of significant impacts; although application of the fairness principle can be complex, the notions of procedural fairness and distributive justice can be applied to define and delineate the principle with reference to a specific treaty regime; despite historical or existing injustice, a fair share of natural resources can bring sustainable and durable peace in inter-state relations.

The entire article is available here.