1. Transboundary Water Resources

2. Water Rights 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 Him 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: 1. Contribution to the drainage basin area 2. Climatic factors 3. Prior use 4. Economic & social needs 5. Population 6. Costs of meeting needs by alternative means 7. Availability of other resources 8. 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 1. 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. 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 http://www.msnbc.msn.com/id/8404622 MRC China missing

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