Download Approaches to Water Rights by Zaigham Habib

Leadership Development Programme
Cohort 18
Approaches to Transboundary Water Rights
Dr. Zaigham Habib
Hydro-Economic Settings
1. Geological/physical characteristics – location,
size, topography
2. Hydrological characteristics of the water-body
to be shared/allocated, watershed, water
quality, .
3. What to deal with; Drainage Basin, Watershed,
international Watercourse
4. Type of water uses, infrastructure
5. Actual water uses & water demands
Socio-Political Settings
1. Regional and global placing
2. Power Asymmetry
3. Inter-state interactions, cooperation, historical
sharing mechanism
4. Nature of Transboundary conflict
Upstream Extreme Position
The "doctrine of absolute sovereignty" is often initially
claimed by an upstream riparian. This principle, referred to as
the Harmon Doctrine for the US attorney-general who
suggested this stance in 1895 regarding a dispute with Mexico
over the Rio Grande, argues that a state has absolute rights to
water flowing through its territory (LeMarquand 1993;
McCaffrey 1996). The doctrine was rejected by Harmon's
successor and later officially repudiated by the US (McCaffrey
1996), was never implemented in any water treaty (with the
rare exception of some internal tributaries of international
waters), was not invoked as a sources for judgment in any
international water legal ruling, and was explicitly rejected by
the international tribunal over the Lac Lanoux case in 1957.
Downstream Extreme Position
The down-stream extreme claim often depends on climate. In
a humid watershed, the extreme principle advanced is "the
doctrine of absolute riverain integrity," which suggests that
every riparian is entitled to the natural flow of a river system
crossing its borders. This principle has reached acceptance in
the international setting as rarely as absolute sovereignty. In
an arid or exotic (humid headwaters region with an arid downstream) watershed, the down-stream riparian often has older
water infrastructure which is in its interest to defend.
Upstream and Downstream adjustments
The principle that rights acquired through older use, historic rights,
are given a preference - prior appropriations, suits downstream
developed economies.
Up-stream riparians advocate "equitable utilization," since the
principle gives the same weight to the present needs as those of the
past. Likewise, down-stream riparians (along with the
environmental and development communities) have pushed for
emphasis on "no significant harm," effectively the equivalent of the
doctrine of historic rights in protecting pre-existing use.
The "doctrine of limited territorial sovereignty" reflects rights to
reasonably use the waters of an international waterway, yet with the
acknowledgment that one should not cause harm to any other
riparian state.
The Carol river crosses from the French into the Spanish Pyranees. In the early
1950's, France, asserting absolute sovereignty, proposed diverting water from
the river across a divide towards the Font-Vive for hydropower generation -Spain would be compensated monetarily. Spain objected, asserting absolute
riverain integrity and the existing irrigation needs on its side of the border. Even
when France agreed to divert back first the water needed for Spanish irrigation,
then all of the water being diverted, through a tunnel between watersheds,
Spain insisted on absolute riverain integrity, claiming it did not want French
hands on its tap. Both absolute principles were effectively dismissed when a
1957 arbitration tribunal ruled in the case that "territorial sovereignty...must
bend before all international obligations," effectively negating the doctrine of
absolute sovereignty. Yet the tribunal also admonished the downstream state
from the right to veto "reasonable" upstream development, thereby negating
the principle of natural flow or absolute riverain integrity. This decision made
possible the 1958 Lac Lanoux treaty (revised in 1970), in which it is agreed that
water is diverted out-of-basin for French hydropower generation, and a similar
quantity is returned before the stream reaches Spanish territory.
Global Conventions
1. 1997 UN Convention on the Law of the NonNavigational Uses of International Watercourses (UN
Watercourses Convention/ UNWC/ New York
convention) –in force 17 August 2014
2. 1992 Convention on the Protection and Use of
Transboundary Watercourses and International Lakes
(UNECE Water Convention/ ECEWC/ Helsinki
Convention) –in force 1996; amendment in force 2013
but waiting for 3 countries)
3. ILC Draft Articles on the law of Transboundary Aquifers –
no treaty “ status”
Guiding Role of International Principles
Helsinki Rules of 1966, which also provides guidelines for
�reasonable and equitable� sharing of a common waterway
(Caponera 1985). Article V lists eleven factors which must be
taken into account in defining what is �reasonable and
equitable.� There is no hierarchy to these components of
�reasonable use;� rather they are to be considered as a
whole. One important shift in legal thinking in the Helsinki Rules
is that they address the right to �beneficial use� of water,
rather that to water per se (Housen-Couriel 1994, 10). The
Helsinki Rules have explicitly been used only once to help define
water use -- the Mekong Committee has used the Helsinki Rules
definition of "reasonable and equitable use" in formulation of
their Declaration of Principles in 1975, although no specific
allocations were determined.
The 1997 Convention
riparian states along an international watercourse communicate and cooperate.
Data/ information exchange, notification of possible adverse effects,
protection of eco-systems, and emergency situations.
"reasonable and equitable use" within each watercourse state, "with a view to attaining
optimal utilization thereof and benefits therefrom," is balanced with an obligation not to
cause significant harm (Tanzi 1997).
Reasonable and equitable uses - seven relevant factors. (8)
"the weight to be given to each factor is to be determined by its importance," and that "all
relevant factors are to be considered together."
“In the absence of agreement or custom to the contrary, no use...enjoys inherent priority
over other uses," and
"in the event of a conflict between uses..[it shall be resolved] with special regard being
given to the requirements of vital human needs."
Article 5: Equitable and reasonable utilization and participation
Watercourse States shall in their respective territories utilize an
international watercourse in an equitable and reasonable
manner. In particular, an international watercourse shall be used
and developed by watercourse States with a view to attaining
optimal and sustainable utilization thereof and benefits there
from, taking into account the interests of the watercourse States
concerned, consistent with adequate protection of the
watercourse.
Watercourse States shall participate in the use, development and
protection of an international watercourse in an equitable and
reasonable manner. Such participation includes both the right to
utilize the watercourse and the duty to cooperate in the
protection and development thereof, as provided in the present
Convention.
Article 7: Obligation not to cause significant harm
Watercourse States shall, in utilizing an international
watercourse in their territories, take all appropriate measures
to prevent the causing of significant harm to other watercourse
States.
Where significant harm nevertheless is caused to another
watercourse State, the States whose use causes such harm
shall, in the absence of agreement to such use, take all
appropriate measures, having due regard for the provisions of
articles 5 and 6, in consultation with the affected State, to
eliminate or mitigate such harm and, where appropriate, to
discuss the question of compensation.
Article 10: Relationship between different kinds of uses
In the absence of agreement or custom to the contrary, no
use of an international watercourse enjoys inherent priority
over other uses.
In the event of a conflict between uses of an international
watercourse, it shall be resolved with reference to the
principles and factors set out in articles 5 to 7, with special
regard being given to the requirements of vital human
needs.
The principle of Equitable Utilization is enounced as
“Each Basin State is entitled, within its territory, to a
reasonable and equitable share in the beneficial use of
the waters of an international Drainage Basin”- the
‘Drainage Basin’ is defined as ‘a geographical area
extending over two or more States determined by the
watershed limits of the system of waters, including
surface and underground waters flowing into a common
terminus’.
A workable definition of what makes a utilization
‘reasonable and equitable’ ?
Although what is a reasonable and equitable share ‘is to be
determined in the light of all relevant factors in each
particular case’ (and despite the availability of a nonexhaustive list of those relevant factors).
Transboundary agreements negotiated during the 20th century
40% focus on hydropower - often amongst mountainous nations at headwaters of the
transboundary rivers , Nepal has four treaties with India. 37%, address water
allocation and include volumetric allocations among riparian countries. In cases
where volumetric allocations are specified, they often are fixed, leaving little
flexibility for changing flow conditions; especially problematic in the context of
climate change(Hamner and Wolf 1998).
UNIQUE ALLOCATION PRACTICES (A.T.Wolf 1999)
PRINCIPLE
PERCENT (NUMBER) OF TREATIES
Half of flow to each of two riparians
6% (9/149)
Absolute sovereignty on tributaries
2% (3/149)
Relinquish prior uses
Prioritize uses
Equal allocations of benefits
Compensation for lost benefits
Payments for water
0.6% (1/149)
3% (4/149)
1% (2/149)
7% (10/149)
3% (4/149)
Gaps/ limitation of the Existing Treaties
1. Many transboundary agreements identify water allocations, fail to include
any standards for the quality of water
2. Many transboundary agreements exclude monitoring, enforcement, and
conflict resolution procedures. Only about half of treaties have provisions
for monitoring, and most monitoring efforts require only the most basic
elements. This is particularly problematic given that data collection and
sharing can provide an important base for negotiation. While disputes
can be resolved by technical commissions, basin commissions, or
government officials, 22% make no provisions for dispute resolution, and
32% of treaties are either incomplete or uncertain as to the creation of
dispute-resolution mechanisms (Hamner and Wolf 1998).
3. While the conflict-resolution mechanisms in most treaties are
undeveloped, new monitoring technology has introduced new
enforcement possibilities. It is now possible to monitor a watershed from
afar, using remote-sensed images.
4. Hamner and Wolf (1998) suggest that the next major step in treaty
development may be mutually enforceable provisions, based in part on
objective and highly detailed remote images, better chemical testing, and
more accurate flow computations than previously available.
Limited functioning of the International Organizations
The process is further complicated in the rare cases of formal
litigation or arbitration -- there are few specialized institutions
for international law making, interpreting, or enforcing. The
International Court of Justice (ICJ) in the Hague, for example,
hears cases only on specific points of law, only with the consent
of the parties involved, and no practical enforcement
mechanism exists to back up the Court�s findings. A state
with pressing national interests can therefore disclaim entirely
the court’s jurisdiction or findings (Rosenne 1995).
Given all the intricacies and limitations involved, it is hardly
surprising that the International Court of Justice has only
(2?)recently decided its first case regarding international water
law.
New Trans-boundary Challenges
i)
Climate Changes impacts and Costs
ii) Groundwater aquifer sharing, recharge
iii) Protection of catchment – snow & water resources,
ecosystems, forests (access the major issue)
iv) Pollution of rivers, lakes and aquifers
v) Environmental flows to keep the rivers alive
vi) Managing extreme events – telemetry not the major
issue
10/28/2013
19
A 21st Century Water World
Finite
Resources
Demographic
Shifts
Global
Economy
Water
Quality
Governance &
Institutions
Ecological
Economics
Culture &
Values
Water
Wars
Climate
Change
Water
Quantity
Hydro-politics
Hydro-diplomacy
Environmental
Sustainability
Amending Existing Treaties to Improve Flexibility
Most treaties and international agreements fail to have
adequate mechanisms for addressing changing social,
economic, or climate conditions.
The following mechanisms are proposed to allow for flexibility
in the face of change:
(1)
(2)
(3)
(4)
flexible allocation strategies and water quality criteria;
provisions for extreme events;
amendment and review procedures; and
joint management institutions.
Water rights and Water benefits Correlations
Linked or Alternate of each other? Where to focus?
1. Phillips et al. (2006): Benefit sharing a holistic approach, can
be used in different conditions. The equitable allocation of
water resources and the sharing of benefits are two sides of
the same coin, an agreement on water allocations can be
supported by sharing of benefits or compensation payments.
2. Daoudy (2007) argues that the optimal water solutions may
compromise the desire to achieve usage equity.
3. To address the water allocation problems an agreement on
property rights is a prerequisite for an economic exchange
scheme (Richards and Singh, 2001; van der Zaag et al., 2002).
4. Towards “water rationality” *
If water users acknowledge that they depend on each
other,
• not only in terms of water but also otherwise
• not only now but also in future
it may be rational for them to cooperate and forego some
immediate benefits
• even for upstream users/countries
• even in cases where power-differences are large
Examples:
1. Benefit sharing - joint infrastructure
development
Strategy:
1.
make explicit the
existing
interdependencies
between parties
2.
actively seek to
increase mutual
dependencies
2. Payment for Environmental Services
3. Issue linking - beyond the basin, beyond water
Pieter van der Zaag
* Alam, 1998
4. Towards “water rationality”
international
NGOs
1. Benefit sharing
local
government
Joint infrastructure
development!
boundary
basin
commission
riverine
residents
local
NGOs
local
fisheries
riverine
residents
government
irrigators
sea
city
residents
Towards “water rationality”
1. Benefit sharing
Blue Nile basin
Source: Goor et al., 2010
Nile Basin
Total Area: 3,031,700 km2
Riparian Countries: Burundi, Central African Republic, Democratic
Republic of the Congo, Egypt, Eritrea, Ethiopia, Kenya, Sudan,
Uganda, United Republic of Tanzania.
Transboundary Basin Organisation: Nile Basin Initiative. Involved Actors:
African Development Bank (AfDB), Centre for Environment and
Development for the Arab Region and Europe (CEDARE), Community of
Sahel – Saharan States (CEN-SAD), Economic and Social Commission for
western Asia (ESCWA), Economic Commission for Africa (UNECA), Food and
Agriculture Organisation (FAO), Global Environment Facility (GEF),
Intergovernmental Authority on Development (IGAD), International Water
Management Institute (IWMI), Nile Basin Initiative (NBI), Sahara and Sahel
Observatory (OSS), Southern African Development Community
(SADC), UNEP-DHI Centre for Water and Environment, UNESCO-IHE,
UNDP), USIWI, Water Governance Facility, World Bank.
Egypt and Sudan deferred current CFA - as not recognizing their water
rights and uses pre 1959 agreements
Draft articles on the Law of Transboundary Aquifers
2008
Text adopted by the International Law Commission at its
sixtieth session, in 2008, and submitted to the General
Assembly as a part of the Commission’s report covering the
work of that session. The report, which also contains
commentaries on the draft articles, appears in Official Records
of the General Assembly, Sixty-third Session, Supplement No.
10 (A/63/10).
Article 4
Equitable and reasonable utilization
Aquifer States shall utilize transboundary aquifers or aquifer
systems according to the principle of equitable and reasonable
utilization, as follows:
(a) they shall utilize transboundary aquifers or aquifer systems in
a manner that is consistent with the equitable and reasonable
accrual of benefits therefrom to the aquifer States concerned;
(b) they shall aim at maximizing the long-term benefits derived
from the use of water contained therein;
(c) they shall establish individually or jointly a comprehensive
utilization plan, taking into account present and future needs of,
and alternative water sources for, the aquifer States; and
(d) they shall not utilize a recharging transboundary aquifer or
aquifer system at a level that would prevent continuance of its
effective functioning.
Transboundary Water Management
Actual vs Committed vs Optimal
Analytical tool for forecasting
The practice of management in the abovementioned rivers
is divided into three categories (Kliot 2001):
(a) Treaties and agreements stopping short of allocating
water between riparian states such as free navigation
treaties or institutions which were established for a sole
purpose such as combating pollution (Elbe, Danube, Rhine).
(b) Treaties and agreements allocating water between
states (the Indus, Nile, Ganges, Jordan).
(c) Agreements for joint management of internationally
shared waters (Colorado and Rio Grande, Mekong, Senegal
and Niger).
Future Perspectives for Pakistan
10/28/2013
30
Indus Basin Alluvial Plans - Connectivity
Assessment of trans
boundary aquifers of
the world—
vulnerability arising
from human water use
Yoshihide Wada and Lena
Heinrich - 2013
GRACE NASA 2009
Shared qquifer between 2002 and 2008: relative to the mean for the period.
These deviations from the mean are expressed as the height of an equivalent
layer of water, ranging from -12 cm (deep red) to 12 cm (dark blue). NASA/Trent
Schindler and Matt Rodell
Pre Treaty Indus Basin Integration
AquaPedia @ Tufts
Coupled Natural and Societal System (NSS)
10/28/2013
34
Post Treaty Indus Basin – multi-sector integration
10/28/2013
35
Selected Material
1. Rivers in International Law, by F.J., Berber, Stevens-Oceania, London & New York, 1959.
A pre-1966 Helsinki Rules review of international law applicable to international rivers. Prof. Berber has been
one of the leading scholars who developed the Helsinki Rules. The ILA Water Resources Committee is in
particular indebted to him for his contribution of the Rules on Flood Control and on the Protection of Water
Resources and Water Installations in Times of Armed Conflicts.
2. The Law of International Drainage Basins, edited by A.H: Garretson, R.D. Hayton
& C.J. Olmstaed, published for the Institute of International Law, New York University School of Law, Oceana
Publications, Inc., Dobbs Ferry, New York, 1967, 916 pp. A specialized doctrinal treaties on international law as
applicable to the drainage basin with case studies on the Columbia, Nile, Plata, Indus and Colorado Drainage
Basins.
3. International Groundwater Law, by Ludwik A. Teclaff & Albert E. Utton, Oceana
Publications Inc., London, Rome, New York, 1981, 490 pp. A compendium of doctrinal articles addressing the
origin and development of domestic and international law to the management of underground water resources
contributed
by such leading scholars, among others, as Dante A. Caponera, Robert Emmet Clark, Robert D. Hayton, Ludwik
A. Teclaff and Albert E. Utton.
4. Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases By Basin, Vol. I &
II, Legislative Studies Nos. 15 & 34, FAO, Rome, Italy,
1978, 481 pp., and 1984, 332 pp.
A chronological compilation of some 3700 legal instruments governing international water resources from the
early IXth century until 1983, with Tables classifying water resources by country and countries by basin. For
subsequent treaties, see http://www.fao.org selecting “Legal Office” - “FAOLEX” - “International Treaties”,
FAO’s electronic legislative data base.
Water Disputes in the Jordan Basin Region and their Role in the Resolution of the Arab-Israeli Conflict,
Environment and Conflicts Project (ENCOP) Occasional Paper
No. 13, by Stephan Libiszewski, Center for Security Studies and Conflict Research, Swiss Federal Institute of
Technology, Zürich, Switzerland and Swiss Peace Foundation, Bern, Switzerland, August 1995, 108 pp., available
at: http://www.fsk.ethz.ch/fsk/encop/encop.html
References
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water conflicts. Water International 35(2): 132-149.
Goor, Q., C. Halleux, Y. Mohamed and A. Tilmant, 2010. Optimal operation of a multipurpose
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