transboundary water resources. water rights though the water running in the stream is...
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Transboundary Water Resources
Water RightsThough the water running in the stream is
everyone's, in the pitcher it is his only who drew it out
John Locke, Second Treatise on Government, p. 18.
Water rights are legal instruments for water allocation between citizens in state/national settings.
What do we have in international settings? Extend notions of sharing from human
interactions to those between nations
Him
Not Him!
Some Terminology
Riparian - Beside or along the bank of a river
Transboundary - extends over several nations
Watercourse - A system of surface waters and groundwaters constituting a unitary whole and normally flowing into a common terminus (UN 97)
Water Rights SystemsWater rights systems provide a basis to
Allocate resources among users, Protect existing users from having their supplies
diminished by new users, and Govern the sharing of limited streamflow and water
in storage during droughtsGenerally play a greater role in arid areas than in
humid areasEntitlement defining owner's
Rights, privileges, and limitationsRight to use, not to own
Water RightsMust be well defined
Quantity that may be diverted and consumedTime and place of diversionQuality of delivered water and place of application
Should be:Universal - Privately owned and completely
specifiedExclusive - Benefits and costs accrue to the ownerTransferable - Entirely voluntaryEnforceable - Secure from seizure or encroachment
Two SystemsRiparian Appropriative
Appropriative Water Rights Based on protecting senior water users
from having their supplies diminished by newcomers
Not based on land ownership No preference to riparian landowners
First in time, first in right Priority established by date water is
appropriatedEarly users senior to later users
Right to use, not to ownUse it of lose itBeneficial use is required
Riparian Water RightsOwner of land bordering a stream
or lake has right to take water for “reasonable use” on that land
Early users have no priority over later usersRights of upstream and
downstream users are coequal States own the water and permit
its useSometimes with conditions to
prevent harm to other users
U.S. Water RightsU.S. water management policy (Postel and Richter, pp.
92 – 97)No overarching national vision or goalDeferred to the states (water allocation, use, and
management) If state law conflicts with federal, federal wins International treaties should win over federal law
Water resources of the Rio Grande, Colorado, and Columbia Rivers Allocated by treaties between nations (US-Canada, US-Mexico)
Within states, water rights allocate water toRiver authorities, municipal water districts, cities, irrigation
districts, farmers, industries, and citizensWater districts or river authorities
Distribute water to customers by contract
Transboundary SettingsNationally
Water rights and institutions are devised to rationally and equitably develop and use the resource
InternationallyWater rights don’t exist between countries Laws are enforced by international agreements
between countries, not by an overarching authority
Water in Transboundary SettingsInternational law guides sharing of water in
transboundary settingsPrinciples generally hinge on notions of
Equality, Reasonableness, Avoidance of harming ones neighborsPrevention of conflicts through
Information sharing, Notification and consultation of neighboring
riparians of proposed works
International Water Law Helsinki Rules (see also new Berlin Rules)
“Rules on the Uses of the Water of International Rivers” (ILA, Helsinki, 1966) http://www.internationalwaterlaw.org/IntlDocs/Helsinki_Rules.h
tm Helsinki Convention
“Convention on the Protection and Use of Transboundary Watercourses and International Lakes” (UN-ECE, Helsinki, 1992) http://www.unece.org/env/water/
UN Convention “Convention on the Law of the Non-navigational Uses of
International Watercourses” (UN, New York, 1997) http://www.internationalwaterlaw.org/IntlDocs/Watercourse_Conv.ht
m
Intended to be framework documents Provide guidance for more specific multilateral agreements
governing particular transboundary situations
SovereigntyNation is supreme authority
within a territory National interest in protecting
independence Nations recognize that some
problems require international cooperation
Most international treaties constrain a nation’s sovereignty
Absolute territorial sovereigntyNation may use water
flowing into its territory for consumption or disposing of pollution with no regard for downstream nations
U.S. Attorney General Harmon’s 1895 response to Mexico's protest over U.S. diversions from the Rio Grande river
"[T]he rules, principles and precedents of international law imposed no liability or obligation on the United States” – Judson Harmon
Rio Grande/Bravo
Absolute territorial integrityA downstream nation
has a right to flow from upstream countries
Implies a veto power for downstream riparian
Example - Nile
Nile Basin
Limited territorial sovereigntyEvery nation bordering a
watercourse has the right to use water flowing in its territory, provided that the use does not harm other nations (riparian rights)
Basis of Helsinki RulesExamples
1929 treaty (UK – Egypt) and 1959 treaty (Sudan and Egypt) on the Nile
Johnston Plan for the JordanRio Grande
Helsinki RulesDistribution among riparians governed by:
1. Contribution to the drainage basin area2. Climatic factors3. Prior use4. Economic & social needs5. Population6. Costs of meeting needs by alternative means7. Availability of other resources8. Avoidance of undue waste & damage
downstream
UN Convention 1997Riparian states can utilize the resource in an
equitable and reasonable manner in order to achieve optimal and sustainable utilisationIncludes right to utilize the watercourse and
the duty to cooperate in use, development and protection
Factors Relevant – UN 19971. Geographic, hydrographic, hydrological, climatic, ecological
and other factors of a natural character; 2. Social and economic needs of the States concerned; 3. Population dependent on the watercourse in each State; 4. Effects of the use of the watercourses in one State on other
States; 5. Existing and potential uses of the watercourse; 6. Conservation, protection, development and economy of use
of the watercourse and the costs of measures taken to that effect;
7. Availability of alternatives, of comparable value, to a particular planned or existing use.
8. Weight given to each factor is determined by its importance in comparison with other relevant factors
9. States shall enter into consultations in a spirit of cooperation
No Significant Harm – UN 1997Take all appropriate measures to prevent the
causing of significant harm to other watercourse States
Take all appropriate measures to eliminate or mitigate such harm and, where appropriate, to discuss compensation
Example: Tigris – EuphratesShared between
Turkey, Syria, IraqTurkish projects
motivated search for agreement
Characterized by unilateral development (upstream)
Country positions: Iraq: Historic rights Syria: Shared resource Turkey: Reasonable & Equitable
Utilization
http://www.msnbc.msn.com/id/8404622
MRC
China missing
Aral Sea Basin
http://www.lib.utexas.edu/maps/commonwealth/cis_central_asia_pol_95.jpg
Upstream-Downstream conflicts
Water and Energy