transboundary water resources. water rights though the water running in the stream is...

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