A New Generation Of Local Water Leaders

Colorado Environmental Law Journal Colorado Environmental Law Journal

Volume 18Number 3

Article 1

6-1-2007

A New Generation Of Local Water Leaders A New Generation Of Local Water Leaders

Patricia Wouters

A New Generation of Local Water Leaders

Patricia Wouters*

"Water is life"-yet more than 1.1 billion people lack access to safe drinking water and 2.6 billion people have no access to basic sanitation. Responding to the global water challenge is no longer the exclusive domain of engineers: more dams, better reuse, and less leakage, and other technological fixes are unable to deliver on the UN Millennium Development Goals-ensuring that more poor people will be able to live in dignity. As the world's population continues grow, and we find more clever ways to use our water resources, the harsh reality remains: water resources management around the world needs more attention.

It is an unusual and yet entirely natural domain for lawyers-where scarcity leads to competition for diminishing resources and the poor are often the most disadvantaged, "water" law has an important role to play. The most serious issue is, however, not in distilling forth "the law," but more importantly, in communicating effectively with those responsible for making, enforcing, and revising "the law."

How encouraging

to discover a young group of "new" water lawyers-the editorial team of this journal who decided to go forward with this topic, despite the surely more enticing appeal of "climate change" or the global warming debate. Because-we need a new innovative, fresh-thinking, generation of "local water leaders"-an

boundary-pushing league of lawyers (and others) to help us to face down the global water challenge. We need a new home-team; so, thanks very much to this home-team. Let's hope the trend continues.

This collection represents but a sample of some of the pressing issues in the area of water law. Understood at its conceptual level, "water law," should be understood to comprise those areas of law that govern international, national and transnational activities related to water resources management. Thus, the peaceful management of the Mekong, or the Amazon, or the Nile, or the Columbia should be considered as a complex matrix of legal regimes-viewed as a multi-dimensional construct of rules of international and national laws, including (but not limited to!) administrative, corporate, contractual, public, private, regulatory and trade matters.

In our joint article on "shared benefits," Professor Tarlock and I offer some insights into how this notion is located within the primary rule of "equitable and reasonable use" and identify four possible problems with the application of the concept. Perhaps one of the most difficult issues within the international context is the matter of unequal bargaining power between nation states and the priority of use that the first-in-time user (often the "stronger" State) often attempts to impose. The authors caution against the current enthusiasm for the "shared benefits" concept and invite a closer consideration of the bigger picture: that "all relevant factors" (i.e. development, environmental protection and socio-economic factors) need be included under the principle of "equitable and reasonable use."

Gabriel Eckstein brings us up to date on the current status of the UN ILC's draft article on the law of transboundary aquifers. This is a complex area, which remained unresolved following the almost thirtyyear long study of the law governing shared watercourses that resulted in the UN adoption of the 1997 UN Watercourses Convention on the NonNavigational Uses of International Watercourses. That this area of international law-shared groundwater-remains unsettled shows the importance and political sensitivity of this natural resource. While the UN's FAO has made good progress in collecting the legal practice in this field, it remains to be seen whether states will be able to agree a way forward in their diplomatic discussions on this topic. The heated and lengthy negotiations on the 1997 UN Watercourses Convention provide some context for how the ILC's work on an agreed regime for the world's shared aquifers might be considered in the future.

Keith Hayward, Gregory F. Szydlowski and Alistair Rieu-Clarke take us to regional case studies-looking at basin reform in the Dnieper River (Hayward), North America/NAFTA (Szydlowski) and, stakeholder

legal

literature can always benefit

participation on the Danube. The great value-added of actual case-studies is the direct access to state practice that this offers. Hayward's study of the Dnieper is probably one of the only English-language studies of the legal regime of this important European River, shared by Belarus, the Russian Federation and the Ukraine. It is interesting to see how this cooperative framework has evolved in line with the regional legal regimes under the UN Economic Commission for Europe (UNECE). The from more North American information on how the European regional systems are implemented and Hayward's piece demonstrates nicely how this occurs in practice. Alistair Rieu-Clarke provides an innovative look at the role of stakeholder participation in one of the most advanced legal river basin regimes in Europe-the Danube. This work is particularly informative and provides a possible model for consideration on how regional management of a transboundary watercourse, covered by a range of highly diverse international, European/regional and national legal regimes, can include civil society-a challenge in any context! From a legal point of view this study identifies tools for implementing stakeholder participation, leading to the more important question of whether lessons can be learned from this experience and applied in beneficial ways around the world. The challenge of stakeholder engagement continues to be a real concern in study. Gregory most Szydlowski takes us to North America and reminds readers that water scarcity remains an issue and suggests that the governments of Canada, Mexico and the United States are on a "collision course" with private investor claims under trade agreements such as NAFTA. Competing needs for water in this part of the world, and the current "human rights" approach to (drinking) water, coupled with economic interests have placed the issue of the "commodification" of water on the North American agenda. Szdlowski concludes that the legal regimes and joint institutions responsible for the management of the region's water resources remain ambiguous and investors in the sector should not rely on trade agreements to protect their interests, while governments need consider better ways to protect and conserve shared water resources.

transboundary basins, and

requires more

THE BIGGER QUESTIONS

What is the role of water law in developing an integrated water sustainable resources management development? What are the rules of water law that contribute to, or detract from this policy goal? From a water lawyer's perspective, the key concerns in this context relate to the identification and enforcement of

securing

strategy

aimed

at

the rights and obligations that promote equitable and reasonable use of freshwater resources. This would include considering such matters as institutional legal entitlement, allocation among users and uses, mechanisms, and compliance measures in response to practical needs on the ground.

Water Law: The Context

What is the role of (water) law in responding to the world's growing water problems? An estimated 300 million people in twenty-six countries currently suffer from water scarcity. By 2050, approximately two-thirds of the world population, in some sixty-six countries, will face moderate to severe water shortage (World Water Council). More than one billion people live without a daily supply of freshwater and more than twice that number has inadequate sanitation. Elements of the impending "global water crisis" are already with us, and complex problems loom ahead. Managing scarce water resources for increasing demands in an equitable and sustainable manner will be one of the main challenges of the 21st century.

Providing safe and clean water, especially in situations of scarcity, heightened demand, or uneven distribution of the resource, requires the combined and coordinated efforts of all water resource experts. While traditionally, engineers and hydrologists have played central roles in this task, it is now clear that economists, lawyers, political and social scientists, should also have a say in determining how competing interests over water might best be reconciled and beneficially managed. Interdisciplinary input and support is required for the primarily political decisions that determine allocation of the uses of this finite resource. This process has become increasingly complex, especially in light of current knowledge that suggests there exists a broader range of users and uses the ecological functions of water, in-stream uses, the global environment, and so forth, and that there may be technological limits to meeting the ever-increasing demands of a growing human population.

than previously accounted

in particular,

including,

for,

Thus, new paradigms must be created

to address this serious problem. In this context, unique initiatives, such as HELP (Hydrology for the Environment, Life and Policy, a joint UNESCO/WHO endeavor), seek to develop a fresh approach to integrated catchment management through and management-focused orientation. The innovation here is in forming, from the outset, a team of scientists, managers, lawyers and policy-makers to address stakeholders' needs in real catchments.

a demand-responsive

policy

Despite

this progressive shift

in perspective, operationalising interdisciplinary responses to the world's water problems remains rather ad hoc. For example, while the Hague Ministerial Declaration introduces the new concept of "water security," it omits any mention of law, and fails to refer to the 1997 UN Watercourses Convention, the only global legal instrument that provides a comprehensive legal framework for the peaceful management of transboundary watercourses. Many of the water developments on the ground make no provision for including water lawyers in the conceptual stages of those projects.

Water Law: The Issues

In the context of equitable and sustainable management of water resources, the reference to "water law" raises two very different types of issues. The first relates to the role of water law in responding to the issue, generally. The second concerns the substantive content of the law that applies to the problem, in particular. What are the legal issues tied to achieving effective water resources management? In essence, there are four key issue areas that must be addressed in any setting, national or international:

(i) legal entitlement (what is the scope of the resource and who is entitled to use it?);

(ii) framework for allocation (where all needs cannot be met, who is entitled to what quantity or quality of the resource? In fact, the issue is more of "re"-allocation in an ongoing system);

(iii) institutional mechanisms, including governance issues (who is responsible for implementing or overseeing the implementation of the laws); and,

(iv) compliance verification, dispute avoidance and resolution (how are rights and obligations enforced?).

When lawyers and policy-makers are drafting legislation (at the national level) or treaties (at the international level) related to water use, each of these elements must be clearly proscribed in an instrument (or series of instruments) that addresses this range of issues. This task is impossible without from other water resource experts, including, but not limited to, hydrologists, scientists, managers and policy-makers.

input

the

For example, on the matter of legal entitlement, two key issues must be considered and resolved. First, what is the scope of the resource, i.e. the physical, quantitative and qualitative, definition of the water resource

to be utilized? Second, what is the scope of the demand ;or water use, i.e. who are the stakeholders and what are their resource-related needs? The conceptual approach to each of these problems requires two separate considerations: not only entitlements, but also obligations must be identified. In fact, a "rights-based" approach to water, from the legal perspective, contains both of these elements, recognizing that the right to utilize freshwater is tied to similar rights of other legitimate users.

Following the definitions needed to determine legal entitlement, some prognostic work may be required in order to identify the range of options for the optimal and beneficial use of the resource-especially where the demand for the resources exceeds the supply. Can a priority of uses be established? Where competing needs must be reconciled, what are the criteria for achieving that task? Are some uses more important than others? Science (in the broad sense of the term) and civil society must play important roles in this arriving at an agreed framework for allocation, the cornerstone of any water resource decision-support system.

The next step in the process usually requires the creation of institutional mechanisms that ensure the established "rules of the game" are applied. How these organs are constituted, their mandate, and their scope of responsibility must be established. The range of options needs careful consideration, and should be tailored meet the needs of the particular regime, without compromising the objectives of the water management scheme. Often, one duty of the institutional organs is to ensure compliance with the legal regime established. What substantive and procedural measures are best suited to monitor compliance with the rights and duties set forth? In most cases measurable indicators are needed to assess the level of implementation of legal regimes. The design and operationalisation of such a system calls for a coherent contribution from all water resources specialists-lawyers, scientists, managers and policy-makers. fact, compliance systems resources management is an area that could use further development, especially at the international level.

for water

In

Water Law: International Dimension

A basic understanding of the fundamental concepts and principles of public international law is necessary in order to appreciate fully the issues that arise in the context of the law that governs international freshwater. For example, it is important to know that the rules of international law apply to sovereign States, and it is primarily for States themselves to ensure compliance with international commitments. There

is no "supra" authority to enforce such rules, except in very specific circumstances, such as a threat to international peace and security, where the United Nations can take action. Enforcement of international law is a central issue of concern. However, the first step to that exercise must be identification of the applicable rules.

These rules are found in treaties, international custom, general principles of law and the writings of "learned publicists" (Statute of the International Court of Justice). Treaties usually provide the most readily accessible source of law, but the other sources cannot be ignored. In the law governing the non-navigational uses of international watercourses, rules of customary law are particularly important and are often invoked by States in the absence of "written," or "codified," law. It is worth noting that not all treaties apply to all States-firstly, it must be ascertained whether the State concerned is a party to the treaty in question, and secondly, whether the latter has come into force and thus has become legally binding on the State. Finally, the normative content (requirements) of the treaty rules must be established in order to determine whether, or not, a State's actions are in accordance with its treaty obligations.

recognized

The cornerstone principle of international water law-"equitable rule of reasonable utilization"-is a universally and customary law, reflected in many international agreements, that governs States' behavior with respect to international watercourses. An important element of this principle is the requirement that watercourse States take to other all reasonable measures not watercourse States. These substantive rules are supported by a set of procedural rules requiring, inter alia, prior notification, exchange of information and consultations, concerning planned measures likely to adversely affect other watercourse States.

to cause significant harm

The fundamental principles and procedural rules of water law are codified in the 1997 UN Watercourses Convention, a framework instrument that sets forth basic rights and obligations of watercourse States. Adopted by UN General Assembly Resolution on May 21, 1997, the Convention was supported by 104 States, with only three States voting against (Burundi, China and Turkey). The 1997 Convention requires thirty-five ratifications and has yet to come into force. The Convention has been recognized by the International Court of Justice (ICJ Danube case) and by a significant number of States as an authoritative statement of the fundamental principles of international water law. Regardless of when, and whether, the Convention comes into force, it will continue to play an important role in the management of international watercourses.

Water Law: National Dimension

The role of law in water resources management reflects its place in society in general. Water law is distinct from water policy. The overall objective of a water policy is to achieve the maximization of benefits deriving from available water resources and their rational management. The main function of water law is, in principle, to promote and facilitate attaining policy objectives through a system of regulatory and institutional measures and mechanisms. In some instances, however, inadequate water legislation can be a serious obstacle to achieving effective water resources management at the national, basin or local levels.

it usually constitutes

Water law is not limited to water legislation (national water acts, bylaws and other regulations), although its normative core. Relevant rules and provisions can be found in a variety of sources, including, constitutional law, environmental law, land law, mining law and also in administrative, civil and criminal legislation. In some countries, customary law can be as important as "written" law in regulating water resource-related activities, especially at the level of rural community. The fact that it is unwritten does not detract from its legitimacy.

Traditionally, the notions of "water laws" and "water rights" were considered in the same vein and referred mainly to those legal rules governing the relationship among water uses, primarily reflected in the riparian rights doctrine and the prior appropriation doctrine. Modem water law, having retained some of the traditional elements, has now evolved into a more sophisticated and complex legal system that reflects the changing value of water resources in a modem society.

At the national level, the notions of legal entitlement and framework for allocation are closely connected and broadly referred to as "water rights," a common, but often-misused term. "Water rights" must be considered in a co-relative sense: including entitlements and obligations, rights and duties. At the national level, water is generally the property of the State held in trust for its citizens, with overall responsibility for resource-related activities vested in the State. Enforcement of the relevant laws is also the ultimate responsibility of the State and generally carried out through administrative or judicial bodies. Most national water legislation incorporates policy goals in such terms as "optimum use," "effective and beneficial use," "common benefit," "rational use," and "sustainable development," and seeks to protect and effectively manage water supply.

THE WAY FORWARD-A NEW GENERATION OF

LOCAL WATER LEADERS

Despite the abundance of literature on the topic of "integrated water resources management" (IWRM), achieving this goal is very difficult in practice. It is clear, however, that water law must be considered an integral part of the process. Making water law more accessible to nonlawyers and proactively embedding this as an integral part of any water resource-related policy or project is certainly one way forward. At the national and international levels, this would mean including water lawyers from the outset, including the conceptual and practical stages of water policy formulation and implementation. Equally, to make the rules of water law, national and international, work properly, the input of the entire range of water specialists is required-the definition and effective implementation of legal regimes depends on scientific knowledge and expertise. Facilitating an the process could enhance the chances of achieving a coherent water resources strategy that ensures their equitable and sustainable use.

interdisciplinary dialogue

throughout

International law, as any normative system, provides the parameters for legitimate State activity. Critics that deride the principle of "equitable and reasonable utilization" as imprecise and incapable of application fail to understand that the real strength of this rule is its flexibility-making it the ideal operational tool to ensure "water for all." By its very nature, this principle facilitates the reconciliation of competing interests within a framework circumstances--economic, environmental, social and other.

adaptable

changing

to

a

solid

foundation

the peaceful management

Rules of international law, properly drafted and implemented, provide for of transboundary water resources. Critics of the 1997 UN Watercourses Convention ignore one important thing. The opportunity for unilateral development and power politics is always present where the substantive rules and procedural requirements, such as equitable use, prior notification of planned measures, exchange of information, and dispute avoidance mechanisms, are missing. The former serve to level the playing field, while the latter provide predictable rules of the game. The absence of a coherent and balanced legal framework for the management of international water resources increases the likelihood of inequities and adverse consequences, leading, in the worst-case scenario, to serious international conflicts over water.

The legal issues, national and international, arising from the policy objective of achieving equitable and sustainable use of freshwater, should be considered as an integral part of the entire water management

process. Effective water resources policy, that meets the changing and increasing demands of the world's growing population, requires a methodology capable of reconciling, in an ongoing manner, competing interests. A legal framework, supported by interdisciplinary expertise, is a fundamental element of this endeavor.

More importantly, however, is the need for the development and long-term support of a new generation of local water leaders. In a world facing an impending (or continued?) crisis over access to water and sanitation, at the local, regional and international levels, we need fresh new thinking, applied at the local level-where relevant needs can be identified and articulated and new and innovative solutions found and applied to the benefit of all. The challenge is enormous-with climate change, natural disasters and growing populations, added to all of the complex issues linked with global poverty-the demands for efficient, effective and equitable access to the world's diminishing water resources are more difficult to meet.

It is highly commendable of the Colorado Journal of International

issue on Environmental Law and Policy to undertake international water legal law. We must continue constituency on the important role that law has to play in meeting the global water challenge. I would like to thank the Journal for its many efforts in actively contributing to the development of a new generation of local water leaders, giving us all great promise for the future.

this special to update our

--- FOOTNOTES ---

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* Professor of Law, University of Dundee, Scotland and Director, University of

Dundee UNESCO Centre for Water Law, Science and Policy, University of Dundee, Scotland. B.A., LL.B, University of Ottawa, Canada; LLM, Berkeley, CA; D.E.S., PhD, University of Geneva, Graduate Institute of Higher Studies (HEI), Geneva, Switzerland; Guest Research Fellow, Max-Planck-Institute for Comparative and Public International include public Law, Heidelberg, Germany); Professor Wouters research law and matters related to water resources management and poverty international alleviation. Email: [email protected]; website: www.dundee.ac.uk/water.

interests