A Jurisprudential Model for Sustainable Water Resources Governance By Professor D. E. Fisher

Evolving Elements of a Model Standards Outcomes Rights Obligations Liabilities

Standards and Outcome The fundamental standards Reasonable use Equitable use The fundamental outcome Sustainable use

Rights To development To environment To sustainable development To water

Obligations Of conduct Of performance Of result or outcome Of methodology

Convention on the Law of Non- Navigational Uses of International Watercourses Article 5 (1) Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits there from, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.

Convention on the Law of Non- Navigational Uses of International Watercourses Article 6(1) (b) and (f) Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including: (b) the social and economic needs of the watercourse States concerned; (f) conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect.

Convention on the Law of Non- Navigational Uses of International Watercourses Article 7 (1) and (2) 1.Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States. 2.Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

The India-Nepal Treaty concerning the Integrated Development of The Mahakali River 1996 Article 1 (1) and (2) 1.Nepal shall have the right to a supply of m3/s (1000 cusecs) of water from the Sarada Barrage in the wet season (i.e. from 15 th May to 15 th October) and 4.25 m3/s (150 cusecs) in the dry season (i.e. from 16 th October to 14 th May). 2.India shall maintain a flow of not less than 10 m3/s (350 cusecs) downstream of the Sarada Barrage in the Mahakali River to maintain and preserve the river eco-system.

Agreement on Cooperation for the Sustainable Development of The Mekong River Basin 1995 Articles 3 and 5 The Parties agree- 3. to protect the environment, natural resources, aquatic life and conditions, and ecological balance of the Mekong River Basin from pollution or other harmful effects resulting from any development plans and uses of water and related resources in the Basin. 5. to utilize the waters of the Mekong River system in a reasonable and equitable manner in their respective territories, pursuant to all relevant factors and circumstances, the Rules for Water Utilization and Inter-basin diversion provided for under Article 26 and the provisions of A and B below.

Constitution of the Republic of South Africa 1996 Section 27 (1) (b) and (2) (1)Everyone has the right to have access to – (b) sufficient food and water. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

National Water Act 1998 of South Africa Section 2 (a), (b),(d), (e), (g) and (h) The purpose of this Act is to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in ways which take into account amongst other factors – (a) meeting the basic human needs of present and future generations; (b) promoting equitable access to water; (d) promoting the efficient, sustainable and beneficial use of water in the public interest; (e) facilitating social and economic development; (g) protecting aquatic and associated ecosystems and their biological diversity; (h) reducing and preventing pollution and degradation of water resources.

Water Act 2007 of the Commonwealth of Australia Section 22 (1) item 6 The Basin Plan must include: the maximum long-term annual average quantities of water that can be taken, on a sustainable basis, from: (a) the basin water resources as a whole; and (b) the water resources, or particular parts of the water resources, of each water resource plan area.

Water Act 2007 of the Commonwealth of Australia Section 23 (1) A long-term average sustainable diversion limit for the Basin water resources, for the water resources of a particular water resource plan area or for a particular part of those water resources must reflect an environmentally sustainable level of take.

Coherence in International Arrangements The principle – The fundamental principle to be applied in managing water resources is their sustainable use and development. Its meaning – The use of water resources is sustainable and the development of water resources is sustainable, in either case, if the social and economic needs of the community are satisfied and if the ecological needs of the environment are satisfied. Its implementation – In determining whether the social and economic needs of the community are satisfied and whether the ecological needs of the environment are satisfied, full and detailed consideration must be given to the principles of sustainable development recognised by international law so that these principles are given effect in making that determination.

Coherence in National Arrangements The Cardinal Rule The cardinal rule for the management of water resources is their sustainable use and development. The cardinal rule applies as the standard according to which the lawfulness of an existing use of a water resource is determined. The cardinal rule applies as the outcome to be achieved in determining whether the proposed development of a water resource is to be undertaken or to be permitted.

Coherence in National Arrangements Applying the Cardinal Rule For the purpose of the cardinal rule an existing use is sustainable if it satisfies the social and economic needs of the community and the ecological needs of the environment and if these needs have been assessed and determined in accordance with the principles of sustainable development. For the purpose of the cardinal rule a proposed development is sustainable if it will satisfy the social and economic needs of the community and the ecological needs of the environment and if these needs have been assessed and determined in accordance with the principles of sustainable development.

Coherence in National Arrangements Compliance with the Cardinal Rule The Minister [ or the person responsible for formulating the water resources plan] must ensure that the water resources plan complies with and gives effect to the cardinal rule for the management of water resources. The Minister [ or the person granting the entitlement] must ensure that the grant of the entitlement does not contravene or the activities authorised by the grant do not contravene the cardinal rule for the management of water resources. Water or water resources must not be used or developed except in accordance with cardinal rule for the management of water resources.

Coherence in National Arrangements The Duty to Comply It is the duty of those authorising, permitting or approving the use or development of water resources or the use and development of water resources: 1)to comply with the cardinal rule for the management of water resources; 2)to observe the principles for the management of water resources stated in this statute; 3)to ensure that the use or development authorised, permitted or approved – (a) achieves the sustainable use and development of the water resource; (b) complies with the rules stated in this statute; (c) complies with the rules stated in the water plans made under this statute.