It is clear from existing research that water users do not adhere strictly to their licenced water rights. Rather, in times of shortage or changing economic conditions they trade water, use less water than to which they are entitled, and work with their neighbours to optimize the water balance in their particular watershed, even when scientific support is lacking. Their motivations are ecological, economic and social: To maintain viable communities, water use must change as conditions fluctuate. The gaps between actual water use licenced under colonial law and unaccounted for indigenous water stewardship and rights raise many important questions about the interaction between watershed (land and water) governance and stewardship and colonial law that have broad application to ongoing water issues. In British Columbia, Canada we are undertaking a research project that is exploring how indigenous communities and licenced water users in the agriculture and utility sectors steward water in the context of indigenous and colonial water law. Focusing on three watersheds where water use is at issue - the Similkameen, Cowichan, and Nemiah - we are investigating how communities use water in times of plenty and times of drought whether or not they have the "right" to use water under licence from the provincial government. The intent is to daylight indigenous and non-indigenous community watershed stewardship practices that can contribute to collaborative water planning and management. This is particularly important given the insufficient scientific baseline on which many water use decisions are made in British Columbia, and the lack of acknowledgement of aboriginal rights to water that are increasingly having an impact on the water balance in any watershed.
Reality Check: The Science-Policy Nexus in European Water Law
The proposed presentation analyzes the arrangements by which water policy in Europe attempts to put measures for the protection of freshwater resources on an appropriate scientific footing to deal effectively with multi-facetted challenges such as pollution, over-abstraction, loss of biodiversity, floods and droughts. The pivotal provisions in this respect are laid down in the Water Framework Directive 2000/60/EC of the European Union (WFD) which determines the essential features of both the national water legislation of the EU’s 28 Member States and international water law in Europe.
The WFD strives for the attainment of “good water status” until 2027 at the latest. Guided by the leitmotif of sustainable development, it follows a distinct ecological approach which is based on the notion that freshwater bodies, due to their ecological interdependency via the hydrological cycle, must be treated in conjunction with interrelated aquatic and terrestrial ecosystems and the climate. Accordingly, surface water and groundwater as well as qualitative and quantitative aspects have to be managed in an integrated manner throughout the natural catchment area and irrespective of administrative or national boundaries. Such a holistic approach requires comprehensive knowledge of all ecological, economic and social factors relevant to the design and implementation of effective measures. Consequently, the WFD foresees the continuous collection, evaluation and review of accurate information on the functioning of freshwater resources, their actual status and the respective pressures of natural or human origin.
To operationalize this distinct science-policy nexus, the WFD sets up a managerial framework which aims at the comprehensive consideration of the ecological preconditions, economic pressures and social factors of human use of freshwater resources within decision-making processes. The relevant management units are the natural river basins within which measures tailored to the specific needs of individual water bodies have to be developed. EU Member States had to determine appropriate “river basin districts” (RBDs) and perform surveys of their ecological characteristics and the impact of human activities. Based on the findings, a “river basin management plan” (RBMP) including a “programme of measures” had to be established for each river basin district in order to attain “good water status” by 2027 at the latest.
As a “reality check,” RBMPs must be regularly reviewed and updated. Updated RMBPs also have to include an assessment of the progress made towards the achievement of “good water status,” including an explanation why objectives have not been reached. In this way, decision-makers are forced to justify their actions and draw conclusions from “lessons learned” in order to revise the respective measures.
In sum, the proposed presentation will highlight the various mechanisms enshrined in European Water Law to facilitate the development, implementation and adjustment of effective measures which take into account the relevant ecologic, economic and social realities. It will, however, also analyze the deficiencies undermining science-based water policy in Europe.
Enriched with notions of cultural, religious, and biological significance—the water paradigm inherently flows counter to theoretical currents of the law and economics analysis. The purpose of this research is to identify the confluence of these distinct channels of scholarship, using law and economics not as an empirical vessel to determine the “value” or “valueless” nature of water, but rather as means to reconcile conflicting externalities among interested parties and to identify management strategies that embrace sentiments of economic efficiency throughout the arena of global hydrocommerce. The various water perspectives elicit an intricate mosaic of tensions concerning the provision and protection of this fundamental natural resource.
The legal basis for the human right to water, in terms of availability, quality, and accessibility, was adopted in 2002 by the U.N. in General Comment No. 15. Despite this recognition, more than 1.1 billion people globally still lack sufficient access to clean water, while 2.6 billion have no provision for sanitation. Against this inexcusable backdrop, many public-sector utilities lack financial resources to provide water and continue to operate distribution schemes with undesirable inefficiency. From a pragmatic standpoint—and to guarantee that citizens have access to water—there exist circumstances, both in reality and in the text of the Comment, whereupon governments should be compelled, or at least encouraged, to solicit capital investment from the private-sector to ensure delivery of water.
An individual’s lack of access to water arises from economic, physical, institutional, and political constraints. The primary challenge for many water distribution schemes are the lack of adequate financial resources. In developing countries, almost ninety-seven percent of water distribution is managed by public-sector suppliers. The inept realities concerning these distribution systems, exacerbated by the billion individuals that still lack water, suggests that governments retain some responsibility for the persistence of the global water crisis.
Reconciliation is the next step in the human right to water argument—from its theoretical origins to its pragmatic implementation—that may be realized through law and economics analyses in support of private-sector participation, both in delivering water and funding for adequate infrastructure. Much like distinct tributaries to a mighty river, these disciplines maintain differences in methodology and objectives; but as these disciplines converge, their tributaries reconcile to form the river’s main stem, with potential to influence entire watersheds of jurisprudence. This research does not cabin itself into free-market advocacy, nor does it exclusively promote a human rights perspective. In unique contrast, objectivity is maintained by exploring issues from a scientific perspective; thereby embracing an ecological approach that seeks interdisciplinary solutions by recognizing these symbiotic contradictions.
As the legal right to water continues to evolve as an international establishment, this research represents one of the first to analyze the human right to water from within the purview of law and economics analyses, including Coase Thereom and transaction costs. On a case-by-case basis, this research identifies risks, incentives, and externalities, both in circumstances with private-sector involvement and without, examining various alternatives that result in economically efficient allocations of resources.
The aritcle is published at Boston College International and Comparative Law Review, Vol. XXXIX, No. 1, 2016
The birth of South Sudan falls directly in the demarcation zone of the rivalry between downstream and upstream riparian states on the waters of the Nile River. The downstream states—Egypt and Sudan—stress their “natural and historic” rights to the entire flow of the Nile based on the 1959 Nile Agreement and older colonial treaties, while the upstream African states refuse to be bound by colonial treaties and claim their equitable share of the Nile River by promoting South Sudan’s accession to the Cooperative Framework Agreement (CFA). The Nile River Basin lacks an international binding water agreement that includes and satisfies all the riparian states. This Article analyzes the status quo of South Sudan’s water rights to the Nile River by addressing the following questions: Is the new state bound by any rights and obligations established by the 1959 Nile Agreement? Is it advantageous for South Sudan to accede to the CFA, which provides for modern principles of international water law? The Article applies the customary international law of state succession to South Sudan’s secession from Sudan to determine if the 1959 Nile Agreement is binding between the two states. It concludes that South Sudan succeeded Sudan with regard to territorial rights and obligations established by the 1959 Nile Agreement, as customary international law recognizes that legal obligations of a territorial nature remain unaffected by state succession. South Sudan should enter into negotiations on a binding water agreement to allocate the 18.5 billion cubic meters of water granted to it under the 1959 Nile Agreement. The Article concludes that South Sudan should accede to the CFA within its allotted portion of the Nile waters under the 1959 Nile Agreement.