1. International Water Conventions
Transboundary Waters

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
Watercourse - A system of surface waters and groundwaters constituting a unitary whole and normally flowing into a common terminus (UN 97)
Riparian - Beside or along the bank of a river
Transboundary - extends over several nations

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 Should be: Two Systems
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)
Helsinki Convention
“Convention on the Protection and Use of Transboundary Watercourses and International Lakes” (UN-ECE, Helsinki, 1992)
UN Convention
“Convention on the Law of the Non-navigational Uses of International Watercourses” (UN, New York, 1997)
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 utilize the watercourse and the duty to cooperate in use, 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 mitigate such 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
1) Originated from the east edge of Tibet belongs to Yung-Nan Province in China and run down to the south 2) Run through the border of Laos PDR and Myanmar 3) Continue running to the south and run through the border of Laos PDR and Thailand 4) Take some right tributaries from Thailand and then run into Cambodia 5) Take some right tributaries including Tonlesap River from Great Lake 6) Start breaking up into plural flows and form vast Mekong Delta in Viet Nam and finally run into the South-China Sea

22. Aral Sea Basin Upstream-Downstream conflicts Water and Energy

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).