International Water Conventions

1. International Water Conventions TransboundaryWaters

2. Water Rights Him • Though 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 Not Him!

3. 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)

4. Water Rights Systems • Water 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 droughts • Generally play a greater role in arid areas than in humid areas • Entitlement defining owner's • Rights, privileges, and limitations • Right to use, not to own

5. Water Rights • Must be well defined • Quantity that may be diverted and consumed • Time and place of diversion • Quality of delivered water and place of application • Should be: • Universal - Privately owned and completely specified • Exclusive - Benefits and costs accrue to the owner • Transferable - Entirely voluntary • Enforceable - Secure from seizure or encroachment • Two Systems • Riparian • Appropriative

6. 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 appropriated • Early users senior to later users • Right to use, not to own • Use it of lose it • Beneficial use is required

7. Riparian Water Rights • Owner 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 users • Rights of upstream and downstream users are coequal • States own the water and permit its use • Sometimes with conditions to prevent harm to other users

8. U.S. Water Rights • U.S. water management policy (Postel and Richter, pp. 92 – 97) • No overarching national vision or goal • Deferred 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 to • River authorities, municipal water districts, cities, irrigation districts, farmers, industries, and citizens • Water districts or river authorities • Distribute water to customers by contract

9. Transboundary Settings • Nationally • Water rights and institutions are devised to rationally and equitably develop and use the resource • Internationally • Water rights don’t exist between countries • Laws are enforced by international agreements between countries, not by an overarching authority

10. Water in Transboundary Settings • International law guides sharing of water in transboundary settings • Principles generally hinge on notions of • Equality, • Reasonableness, • Avoidance of harming ones neighbors • Prevention of conflicts through • Information sharing, • Notification and consultation of neighboring riparians of proposed works

11. 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.htm • 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.htm • Intended to be framework documents • Provide guidance for more specific multilateral agreements governing particular transboundary situations  

12. Sovereignty • Nation 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

13. Absolute territorial sovereignty • Nation 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

14. Absolute territorial integrity • A downstream nation has a right to flow from upstream countries • Implies a veto power for downstream riparian • Example - Nile Nile Basin

15. Limited territorial sovereignty • Every 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 Rules • Examples • 1929 treaty (UK – Egypt) and 1959 treaty (Sudan and Egypt) on the Nile • Johnston Plan for the Jordan • Rio Grande

16. Helsinki Rules • Distribution among riparians governed by: • Contribution to the drainage basin area • Climatic factors • Prior use • Economic & social needs • Population • Costs of meeting needs by alternative means • Availability of other resources • Avoidance of undue waste & damage downstream

17. UN Convention 1997 • Riparian states can utilize the resource in an equitable and reasonable manner in order to achieve optimal and sustainable utilisation • Includes right to utilizethe watercourse and the duty to cooperateinuse, development and protection

18. Factors Relevant – UN 1997 • Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; • Social and economic needs of the States concerned; • Population dependent on the watercourse in each State; • Effects of the use of the watercourses in one State on other States; • Existing and potential uses of the watercourse; • Conservation, protection, development and economy of use of the watercourse and the costs of measures taken to that effect; • Availability of alternatives, of comparable value, to a particular planned or existing use. • Weight given to each factor is determined by its importance in comparison with other relevant factors • States shall enter into consultations in a spirit of cooperation

19. No Significant Harm – UN 1997 • Take all appropriate measures to prevent the causing of significant harm to other watercourse States • Take all appropriate measures to eliminate or mitigatesuch harm and, where appropriate, to discuss compensation

20. Example: Tigris – Euphrates • Shared between Turkey, Syria, Iraq • Turkish projects motivated search for agreement • Characterized by unilateral development (upstream) • Country positions: • Iraq: Historic rights • Syria: Shared resource • Turkey: Reasonable & Equitable Utilization

21. Mekong MRC China missing http://www.msnbc.msn.com/id/8404622

22. Aral Sea Basin Upstream-Downstream conflicts Water and Energy http://www.lib.utexas.edu/maps/commonwealth/cis_central_asia_pol_95.jpg

23. Legal and institutional frameworks • Legal Basis (i.e. is it based on a Treaty, Memorandum of Understanding etc.) • Member States (what states are parties to the agreement, are there observer states or groups) • Geographical Scope (what is covered within the framework) • Legal Personality (what is the body that implements the framework) • Functions (what does the framework seek to do)

24. Legal and institutional frameworks • Organizational Structure (what are the institutional designs and how do they interact) • Relationships (i.e. with multilateral, domestic and non-water sectors) • Decision Making (how are decisions within the institution made) • Dispute Resolution (is there a specified method for preventing and dealing with disputes among members) • Data Information Sharing, Exchange, and Harmonization (how do the countries share and exchange data with respect to the shared waters) • Notifications (how are members notified of changes to the framework) • Funding and Financing (how are operational costs paid for in both the long and short term)

25. Legal and institutional frameworks • Benefit Sharing (how are the benefits of the framework distributed among members) • Compliance and Monitoring (how do members ensure they are applying the agreement properly, and are there any reporting or evaluation mechanisms) • Participation and the Role of Multiple Stakeholders (how are civil society, youth and private sector groups engaged) • Dissolution and Termination (how is the agreement terminated) • Additional Remarks (any pertinent information that falls outside any of the identified criteria) • Websites and References (helpful websites and citations to supporting information).