Unit05 Lecture Notes

The course material has been developed by Professor Joyeeta Gupta. Page 1

5. International Water Governance:

an introduction

By Joyeeta Gupta

5.1 Introduction and Learning Objectives

This unit provides an overview of the key water issues that will be further developed in this

course. After an explanation of key conflicts worldwide, it defines some key terms, explains

how boundaries are demarcated on international rivers and the fundamental principles with

respect to navigation. It then makes the argument that we are witnessing three parallel

processes in the development of water institutions.

After reading this unit, you should be able to:

Define and understand terms such as water governance, international river, international

watercourse, median line, boundary demarcation, Thalweg line, riparianism etc.

Have an understanding of existing water conflicts world-wide ( 5.2) and how these may

be further exacerbated by climate change;

Understand, analyse and assess the different types of possible water conflicts and

governance options to deal with such conflicts;

Understand, analyse and assess the evolution of water governance over the centuries, and

the different actors involved; and

Be able to integrate the different information and form judgements about how water

governance can be improved ( 5.5).

5.2 Water Conflicts

There are 263 international river basins identified in the world, in which 40% of the worlds

population lives (TFDD). About 60 countries have 75% or more of their total area falling

within international river basins (see Table 5-1, estimation based on CIA World Factbook

2010 and Transboundary Freshwater Dispute Database (TFDD), 2002).

Table 5-1 Countries which are for more than 75% located in international river basins (approx.

percentage of total area in international river basin).

Equatorial Guinea 75% Chad 86% Tajikistan 99%

Lithuania 75% Poland 90% Slovakia 100%

Syria 76% Ethiopia 90% Byelarus 100%

Myanmar (Burma) 78% Cambodia 92% Central African Republic 100%

Venezuela 78% Niger 93% Zimbabwe 100%

How many countries share

their rivers?


Ghana 79% Guyana 93% Botswana 100%

Pakistan 80% Malawi 94% Burkina Faso 100%

Bulgaria 80% Slovenia 94% Hungary 100%

Bangladesh 80% Andorra 94% Austria 100%

Belgium 80% Bolivia 94% Switzerland 100%

Uruguay 81% Laos 94% Zambia 100%

Sudan 82% Rwanda 96% Nepal 100%

Guinea 83% Romania 96% Uganda 100%

Gabon 83% Macedonia 98% Bhutan 100%

Afghanistan 85% Burundi 98% Serbia and Montenegro 100%

Bosnia and Herzegovina 85% Moldova 98% Peru 100%

Togo 85% Benin 98% Congo (Brazzav.) 100%

Uzbekistan 86% Swaziland 98% Armenia 100%

Latvia 86% Luxembourg 99% Liechtenstein 100%

Nigeria 86% Czech Republic 99%

Source: Estimation based on CIA World Factbook 20101 (total areas) and TFDD 2002

2 (int. river basin

areas)

The nature of the dependence is such that it often leads to conflicts between nations.

Conflicts between nations range from long-range environmental impacts of multi-purpose

dams, water scarcity to water flooding. In some cases, water conflicts are also the result of

more fundamental identity conflicts, for instance in the Israel-Arab conflict. A list of

international conflicts is presented in the following table.

1 https://www.cia.gov/library/publications/the-world-factbook/ 2 See also www.transboundarywaters.orst.edu, International River Basin Registry

What conflicts exist?


Table 5-2. Major International Water Disputes 1993-2011

Period Water body Countries in dispute Issues Source

1947 - present Indus River India, Pakistan Sharing water resources, Indian

management of dams on tributaries

of the Indus

TFFD (2008)

1953 - present Jordan river Israel, Palestine, Jordan Conflict of distribution of water

from Jordan river and water supply

and treatment conflicts

Gleick 2003,

TFFD (2008)

1959 - present Nile river Ethiopia, Sudan, Egypt,

Uganda, Democratic

Republic of the Congo,

Kenya, Tanzania,

Rwanda, Burundi

Control over irrigation water in

downstream reservoirs of Sudan

and Egypt versus need for

development in upstream countries

such as Ethiopia

Nicol and

Shahin 2003

1960 - present Ganges river Bangladesh, India Farakka Barrage (diversion of

Ganges water by India)

TFDD (2008)

1960s-present Euphrates and

Tigris rivers

Iraq, Syria, Turkey, Iran Construction and operation of

several dams along Euphrates and

Tigris by Turkey (GAP project)and

Syria (Tabqa Dam on Euphrates)

reduces flows downstream resulting

in desertification of Iraq/Iran

wetlands

Gleick 2003,

TFFD (2008)

1980 - present Okavango river Namibia, Botswana Sharing water resources WWAP 2004,

Nicol 2003

1991 - present Aral Sea Kazakhstan, Kyrgyzstan,

Tajikistan, Turkmenistan

and Uzbekistan

Sharing water resources and

environmental degradation

WWAP,

TFDD (2008)

1992 - 1997 Danube river Hungary, Slovakia, Gabcikovo/Nagymaros dam project

in Slovakia (diversion of water)

WWAP 2003,

IWLP

1992 - 2003 Goascorn river El Salvador, Honduras,

(Nicaragua)

Boundary dispute ICJ 2003

1995 Cenepa river Ecuador, Peru Control over headwaters of river Gleick 2003

1999 Danube Yugoslavia, various

European countries

Clear-up of war debris in Danube

(navigation and fear of winter ice

dams leading to floods)

Gleick 2003

1999 - 2000 Zambezi / Chobe

river

Namibia, Botswana,

Zambia

Border and sharing water resources Gleick 2003

2002-present Kura/ Araks rivers Azerbaijan, Armenia,

Georgia, Turkey, and

Iran

Heavy pollution TFFD (2008)

2002 - 2005 Niger river Benin, Niger Boundary dispute ICJ 2005

2005 - 2010 Uruguay river Argentina, Uruguay Dispute over the construction of a

pulp mill on the Uruguayan stretch

of the river

ICJ 2010


In the Transboundary Freshwater Dispute Database (www.transboundarywaters.orst.edu) a

database of cases, treaties and river basins can be found.

In the online system participants will find videos on a number of (potential) water conflicts

(the Aswan dam in Egypt, the Atatrk dam in Turkey and the Okavango River in southern

Africa).

Point to Ponder: Is your country involved in any serious water dispute? What are the critical issues involved?

Case 5-1: Conflicts in the Jordan basin

Adapted from the Transboundary Freshwater Dispute Database, see for full case

http://www.transboundarywaters.orst.edu/research/case_studies/Jordan_New.htm

The Jordan River flows between five particularly contentious riparians, two of which rely on the river as the

primary water supply. By the early-1950's, there was little room for any unilateral development without

impacting on other riparian states.

In 1951, several states announced unilateral plans for the Jordan watershed. Arab states began to discuss

organized exploitation of two northern sources of the Jordan. The Israelis made public their "All Israel Plan"

which included the draining of Huleh Lake and swamps, diversion of the northern Jordan River and

construction of a carrier to the coastal plain and Negev Desert.

Jordan announced a plan to irrigate the East Ghor of the Jordan Valley by tapping the Yarmuk. At Jordan's

announcement, Israel closed the gates of an existing dam south of the Sea of Galilee and began draining the

Huleh swamps, which infringed on the demilitarised zone with Syria. This action led to a series of border

skirmishes between Israel and Syria.

In 1953, Israel began construction on the intake of its National Water Carrier, north of the Sea of Galilee and in

the demilitarised zone. Syrian artillery opened fire upon the construction site. The Israelis then moved the

intake to its current site at Eshed Kinrot on the north-western shore of the Sea of Galilee.

Against this tense background, the US sent special envoy Johnston to the Middle-East to try to mediate a

comprehensive settlement of the Jordan River system allocations, and design a plan for its regional

development. The initial issue was an equitable allocation of the annual flow of the Jordan watershed between

its riparian states -- Israel, Jordan, Lebanon, and Syria. Since water was (and is) deeply related to other

contentious issues of land, refugees, and political sovereignty, the negotiations took on vital importance to

relations between these new neighbours.

Johnston's initial proposals (the Main Plan) major features included small dams, a medium size (175 Mm3

storage) dam at Maqarin, additional storage at the Sea of Galilee, and gravity flow canals down both sides of the

Jordan Valley. Preliminary allocations were proposed (please see Table 5-3). Israel responded to the "Main

Plan" with the "Cotton Plan," with different allocations. Also, in contrast to the Main Plan, the Cotton Plan:

called for out-of-basin transfers to the coastal plain and the Negev;

included the Litani River.

recommended the Sea of Galilee as the main storage facility, thereby diluting its salinity.


In 1954, representatives from Lebanon, Syria, Jordan, and Egypt established the Arab League Technical

Committee under Egyptian leadership and formulated the "Arab Plan." Its principal difference from the

Johnston Plan was in the water allocated to each state. Israel was to receive 182 Mm3/yr., Jordan 698 Mm3/yr.,

Syria 132 Mm3/yr., and Lebanon 35 Mm3/yr. The Arab Plan:

reaffirmed in-basin use;

excluded the Litani;

rejected storage in the Galilee, which lies wholly in Israel.

Johnston worked until the end of 1955 to reconcile these proposals in a Unified Plan amenable to all of the

states involved. His dealings were bolstered by a U.S. offer to fund two-thirds of the development costs. His

plan addressed the objections of both sides, and accomplished no small degree of compromise, although his

neglect of groundwater issues would later prove an important oversight. Though they had not met face to face

for these negotiations, all states agreed on the need for a regional approach. Israel gave up on integration of

the Litani and the Arabs agreed to allow out-of-basin transfer. The Arabs objected, but finally agreed to storage

at both the (unbuilt) Maqarin Dam and the Sea of Galilee, so long as neither side would have physical control

over the share available to the other. Israel objected, but finally agreed, to international supervision of

withdrawals and construction. Allocations under the Unified Plan, later known as the Johnston Plan, included

400 Mm3/yr. to Israel, 720 Mm3/yr. to Jordan, 132 Mm3/yr. to Syria and 35 Mm3/yr. to Lebanon.

Allocated water (Mm3)

Plan Israel Jordan Lebanon Syria

Main 393 774 -- 45

Cotton (Isr.)*

1290 575 450 30

Arab 182 698 35 132

Unified 400**

720***

35 132

*) Cotton Plan included integration of the Litani River into the Jordan Basin.

**) Unified Plan allocated Israel the "residue" flow, what remained after the Arab States withdrew

their allocations, estimated at an average of 409 MM3/yr.

***) Two different summaries were distributed after the negotiations, with a difference of 15

MCM/yr. on allocations between Israel and Jordan on the Yarmuk River. This difference was never

resolved, and was the focus of Yarmuk negotiations in the late 1980"s.

Table 5-3 Water allocations from Johnston negotiations

The Israeli Cabinet approved the new plan without vote in 1955. President Nasser of Egypt became an active

advocate because Johnston's proposals seemed to deal with the Arab-Israeli conflict and the Palestinian

problem simultaneously. Among other proposals, Johnston envisioned the diversion of Nile water to the

western Sinai Desert to resettle two million Palestinian refugees.

Despite the forward momentum, the Arab League Council decided not to accept the plan in October 1955

because of the political implications of accepting, and the momentum died out. Although the agreement was

never ratified, both sides have generally adhered to the technical details and allocations even while proceeding

with unilateral development. Agreement was encouraged by the United States, which promised funding for

future water development projects only as long as the Johnston Plans allocations were adhered to. Since that

time to the present, Israeli and Jordanian water officials have met several times a year, as often as every two

weeks during the critical summer months, at so-called "Picnic Table Talks" at the confluence of the Jordan and

Yarmuk Rivers to discuss flow rates and allocations.


During the next decades, the main point of discussion between Syria and Israel has been the construction of a

dam in the Yarmuk by Syria. Although all parties could potentially benefit from this project, Israel has not

agreed to it, as it felt it would give Syria to much control over the flow rate of the Yarmuk river.

Although the watershed-wide scope of the Johnston negotiations has not been taken advantage of, the

allocations which resulted have been at the heart of ongoing attempts at water conflict resolution, particularly

along the Yarmuk River, where a dam for storage and hydroelectric power generation has been suggested since

the early 1950's.

In the absence of an agreement, both Syria and Israel are currently able to exceed their allocations from the

Johnston accords, the former because of a series of small storage dams and the latter because of its

downstream riparian position. Syria began building a series of small impoundment dams upstream from both

Jordan and Israel in the mid-1980's, while Israel has been taking advantage of the lack of a storage facility to

increase its withdrawals from the river. Syria currently has 27 dams in place on the upper Yarmuk, with a

combined storage capacity of approximately 250 Mm3 (its Johnston allocations are 90 Mm3/yr. from the

Yarmuk), and Israel currently uses 70-100 Mm3/yr. (its Johnston allocation are 25-40 Mm3/yr.). This leaves

Jordan approximately 150 Mm3/yr. for the East Ghor Canal (as compared to its Johnston allocations of 377

Mm3/yr.).

There are two schools of thought about whether water will be a source of conflict in the 21st

century. The institutional liberal environmental security scholars, liberal institutionalists and

neo-realists tend to argue that water disputes lead to serious conflicts. The alternative school

links serious conflict to identity and political and economic variables.

Ismail Serageldin, erstwhile World Bank vice president for environmental affairs and former

chairman of the World Water Commission argued that the wars of the 21st century will be

fought over water. Frederick Frey finds that water has more potential for conflict than any

other resource, because of its four primary characteristics of political importance, namely

extreme importance, scarcity, maldistribution, and being shared (cited in Villiers 2001).

However, according to Homer-Dixon (cited in Villiers 2001) these conflicts are only likely

under exceptional circumstances. The international water must be of vital importance to the

downstream country, the upstream country needs to be physically able to restrict the river

flow, the downstream country must have sufficient military dominance over the upstream

country and the countries must have a history of antagonism. Homer-Dixon therefore only

considers the Nile region and Middle-East (Euphrates and Jordan river) to be potential zones

of water wars. Based on empirical evidence, Kalpakian (2004) argues forcefully against the

dominant hypothesis that scarcity of resources including water can lead to violent conflict

between nations. Kalpakian concludes on the basis of case studies in the Nile, Tigris-

Euphrates river basin and the Indus that humans do not engage in serious conflict or war over

a shortage of resources. Instead serious conflict is reserved for matters that touch peoples

identities such as their language, history, heritage and self image (p. 1). This is based on his

definition of conflict to imply war, tense diplomatic standoffs, insurgencies and hostile

diplomatic relations. His finding on the middle east is that while water related conflicts may


exacerbate the existing political conflict in the region, a functionalist approach that would

pin the regions hopes on technical cooperation is not only unrealistic, it is naive (p. 140).

Hence, there is now increasing literature which points out that there is more evidence of

cooperation between countries that share river basins than actual conflicts.

However, water challenges in existing river basins are likely to be further exacerbated by the

problem of climate change. Global warming will lead to rising sea levels, melting glaciers

and changing hydrological patterns. These changes will affect river basins, their ecosystems

and the social context in which they exist. A major problem for water managers will be the

need to cope with the uncertainty of climate change itself and the underlying data regarding

changes in weather patterns. A consequence of the changing precipitation patterns is that

agricultural and water supply systems will be affected; and may put larger proportions of the

global population at risk. For more details, see Aerts and Droogers (eds.) 2004.

Against this background, the following paragraphs explain how international water law has

developed. It first defines a few terms, moves on to explain the issue of boundary

demarcation between countries and the navigational uses of rivers. It then explains the three

competing processes of law making: namely (a) the developments in international water

governance over the last 2000 years, (b) the policy developments of the last fifty years, and

(c) the impacts of globalisation.

Points-to-ponder: In highly conflictual settings, such as this case, will it be possible to consider resource issues separate from political issues, such as Johnston tried? What has been the role of non-riparians in this case, e.g. Egypt?

5.3 Key Water Law Terms

This section briefly defines a few terms:

Principles: Blacks law dictionary (1983: 622) defines principles as: A fundamental

truth or doctrine, as of law; a comprehensive rule or doctrine which furnishes a basis or

origin for others; a settled rule of action, procedure or legal determination. A truth or

proposition so clear that it cannot be proved or contradicted unless by a proposition which

is still clearer. That which constitutes the essence of a body or its constituent parts. That

which pertains to the theoretical part of a science. A principle is a formula that can be

coherently applied from case to case, from law to law. Because it is applied in a non-

discriminatory manner, it is fair - in that it treats all cases alike. (Unit 6 elaborates further

on principles in water law and Unit 9 on principles in environmental law and politics).

Sovereignty: Blacks Law dictionary (1983: 725) defines sovereignty as: The supreme,

absolute, and uncontrollable power by which any independent state is governed; supreme

political authority; paramount control of the constitution and frame of government and its

administration The power to do everything in a state without accountability, - to


make laws, to execute and apply them, to impose and collect taxes an levy contributions,

to make war or peace, to form treaties of alliance or of commerce with foreign nations,

and the like. Note this uncontrolled power only applies to relations between states, not

between a state and its citizens. Thus, democracy does not stand in the way of

sovereignty! The principle of sovereignty is a corner-stone of international water and

environmental law (see 6.2.1).

Water Pollution: Pollution of water resources can de defined as the human made or

human induced alteration of the physical, chemical, biological and radiological integrity

of the water resources.

Non-transformationalist uses of water: Non-transformational uses are uses that do not

change the water body. Water is also the home to many living creatures. It is a part of the

ecological system and supports a variety of plant organisms. These non-

transformationalist uses include the recreational, aesthetic and ecological uses of water

bodies; floodplains and wetland protection; and water resource enhancement (Goldfarb

1988).

Riparianism: The 19th century doctrine of riparianism states that the right to use stream

water is restricted to the owners of land contiguous or riparian (adjacent) to the stream.

The riparian owner may divert water from a stream only on his riparian land, which must,

by definition be contiguous at some point. This system guaranteed access of water to the

landowners above and/or next to a water source. At the international level, the countries

that lie next to a river or countries that have an international river passing through it are

referred to as riparian states.

International river: An international river is one either flowing through the territory of

more than one state, sometimes referred to as a successive river, or one separating the

territories of two states from one another, sometimes referred to as a boundary or

contiguous river.

International drainage basin: The International Law Association defines an

international drainage basin as a geographical area extending over two or more states

determined by the watershed limits of the system of waters, including surface and

underground waters, flowing into a common terminus (Helsinki Rules, 1966; see 6.3).

International watercourse: Watercourse means a system of surface waters and ground

waters constituting, by virtue of their physical relationship, a unitary whole and normally

flowing into a common terminus (UN Law on the Non-Navigational Uses of

International Watercourses 1997; see 6.6.4 for details).

Point to Ponder: How would you define a watercourse? What would be the most appropriate definition? Would you prefer watercourse or international drainage basin?


5.4 Boundary Demarcation

When a river forms the boundary of two states, the precise nature of the boundary is often in

dispute. Where a river crosses many states, the boundary is considered to run along a straight

line joining the boundary lines on the two sides of the watercourse. The river is here defined

as a boundary or successive river (see Figure 5-1). When on one bank of a river there is

one country and on the other bank another country, the boundary demarcation becomes more

complicated. During the medieval days, sometimes the boundary was considered to be the

bank and the river was "res nullius", i.e. belonged to nobody. Sometimes the river was

considered to be "res comunis" belonging to both countries.

Sometimes, when one of the two nations is more powerful, it can gain control over the river

up to the other bank by a Treaty. Thus Iraq gained control over the Shat-el Arab and had

sovereignty over the river up to the riverbank in Iran. This was modified by a later agreement

of 1975.

Figure 5-1. Boundary demarcation for successive river

Where is the boundary

between states situated on a shared river?


One common practice is to appoint the median line as the boundary line. This is the

imaginary line equidistant from either river bank, also corresponding to the geometric centre

of the river. This creates complications for navigation purposes, as the depth is a more

relevant feature than the breadth for navigation. This led to another practice of seeing the

boundary as the Thalweg line, which is the deepest part of the river, or the median line of the

deepest channel.

Figure 5-2. Thalweg (left) and median line (right) for an example river section

When the river moves because of natural causes, then the general rule is that if it moves

suddenly, the boundaries remain as they were. However, if it moves gradually, the

boundaries would have to follow the shifting line of the watercourse. Between 1986 and

1992, and recently again in 20033, El Salvador and Honduras went to the ICJ over the

question if the change of course of the Goascorn boundary river has occurred gradually or

suddenly. In a judgement of the ICJ in 1992 the boundary line between the two countries

along the stretch of the river and with respect to the marine territory and islands in the Gulf of

Fonseca was defined. The ICJ decided that the current course of the river should determine

the border between El Salvador and Honduras (ICJ 1992). Thus, the court decided in favour

of Honduras, who claimed that the river had moved suddenly and hence, the boundary lines

would have to adapt to the new river bed. It rejected the claim of El Salvador to base the

frontier between the two countries on the course of the Goascorn river as it had been, since

in 1762, a change occurred depriving El Salvador of a territory of 76 km2 (La Prensa, 2003).

Point to Ponder: Where should the boundary be on a bridge between two countries? How is the boundary defined in relation to the international rivers flowing through your country?

3 The case of 2003 was considered inadmissible because no new facts had been presented in relation to the

judgement of 11 September 1992. Source ICJ, summary of judgment (2003).

Does the boundary

change if the river changes

course?


5.5 Navigational Uses of Rivers

Three principles with respect to the navigational uses have crystallised over time:

the principle of freedom of navigation and of commerce for the riparian states;

the freedom of commerce, but not of navigation of non-riparian states4; and

the duty to consult and settle all matters concerning navigation by common agreement

among riparian states (The Congress of Vienna, 1815).

In 1921 in Barcelona, the League of Nations adopted the Convention and Statutes on the

regimes of Navigable Waterways of International Concern. Article 14 of this Convention

provided that international river commissions would be set up to draw navigation regulations,

to recommend maintenance works, with the right to receive information from the states about

improvement projects and the power to approve charges.

Although this Convention was only ratified by 20 countries, it is arguable that all the former

colonies have succeeded to this Convention.

Since then there have been different treaties applying to different regions. For a discussion of

the new rules on navigation proposed by the International Law Association in 2004, see

6.5. Furthermore, see 6.3 for a description of the International Law Association).

Point to Ponder: What navigation rules apply to the international rivers in your country?

5.6 The Historical Evolution of Water Governance: a bottom-up approach 5

5.6.1 Introduction

In the area of water, three parallel governance processes can be distinguished. The first is the

2000-year bottom-up process of law and policy making from local level to global level. The

second is the top-down process of water policy making from global to local level that has

developed over the last fifty years. The third is not a conscious process of water governance

but is the result of the forces of globalisation, which have led to the liberalization of markets,

finance and investments and these too have had impacts on water management (see also

3.3).

5.6.2 The bottom-up approach

Since water law exists in a variety of contexts, it differs from region to region. This is

because the regional and fluvial circumstances are different; the cultural context is different,

4 In practice this means non-riparian states have to negotiate (a price for) access to the river, but once they are

allowed to navigate the river, they are free to sell and buy goods at its banks. 5 This section is a reprint of parts of Gupta 2004.

What parallel governance

processes can be

distinguished?

Why are many concepts in

water law universal?


the bargaining power of the countries concerned is different and the uses of water have

developed at different speeds.

And yet, water law in different parts of the world is inspired by quite similar concepts. This is

because ideas have moved around the world throughout history. The fundamental principles

of ancient Hindu and Islamic water law permeated societies through the spread of religion.

Subsequently, Roman water law principles were brought to Continental Europe by Napoleon.

In the last three to four centuries, British, French, Spanish and Dutch water law spread to the

developing countries through colonization. In the 20th century, communist water law

principles spread to the communist bloc of countries (See unit 10 for details). Codification, or

the legal process of writing the state of the art of international law, then influenced the

drafting of text in new regional water treaties. For example, the Helsinki Rules developed in

1966 by the International Law Association were used as reference material by negotiators in

recent decades working on regional treaties (see 6.3 for details). Epistemic communities or

scientific networks spread new scientific concepts such as the hydrological unity of water and

integrated water resources management. New legal concepts such as sustainable development

(see 9.2) are being developed by scholars, and these too influence the law making process

by being a secondary source of law (revisit unit 1 for explanation). And now finally with

globalization, concepts such as private sector participation and liberalization are influencing

water law (see also unit 8).

As the basic concepts, principles and developments in water management circulate globally,

water managers in different parts of the world essentially choose from the same menu of

choices in relation to water management which includes the concepts of ownership

(riparianism, prior appropriation), rights and responsibilities, principles, non-compliance

mechanisms and liability at national level; and the principles of restricted territorial

sovereignty as well as no-harm, equitable and reasonable utilization at international level.

Figure 5-3. Multi-layered nature of local, regional and national water law

How did concepts spread

?


In other words, water law is multi-layered, where some layers are common and some are

different leading to unique situations everywhere. There is a layer of custom and religion;

which is then influenced by conquest and colonization, by legal codification, modern

scientific concepts and globalization. These layers are superimposed on one another as

depicted in Figure 5-3, which does not imply that only the latest text on paper is a true

reflection of the situation in the region. Hence, in order to design effective water laws and

policies, it is essential to understand the complexity, diversity and dynamism of the existing

water institutions.

The similarities in water governance in different regions of the world were codified in the

1966 Helsinki Rules prepared by the International Law Association (see 6.3) and more

recently in the 1997 UN Law of the Non-Navigational Uses of International Watercourses

although the latter has yet to enter into force (see 6.4).

Despite such a long history, there are major water problems and these can be attributed to

failures in governance since firstly, legal institutions from local through to global levels have

not been able to keep up with the changing nature of the use and abuse of water resources.

Second, while water governance was centralized, decision-making was scattered in different

ministries. Third, water institutions have been influenced by mono-disciplinary insights.

Fourth, river basin governance was fragmented along administrative boundaries.

Point to Ponder: What hybrid combination of laws and policies exist in your country?

5.7 The Progress in Global Policy Making: a top-down approach

The urge to think and act globally led politicians and water experts to meet at the first UN

Conference on Water at Mar del Plata in 1977. Since then, there have been meetings, inter

alia, in Dublin, Rio, Marrakesh, The Hague, Johannesburg and Kyoto. But it was the

Millennium Declaration in 2000 and the World Summit on Sustainable Development in 2002

that articulated global Millennium Development Goals on water access and sanitation (See

Unit 9 for details). One of these goals is to halve the proportion of people without access to

safe drinking water and sanitation by 2015. However, this goal is not included in a legally

binding document, nor is it accompanied by concrete measures. Thus, we have goals but no

clear implementation options and the legal and policy world go their individual ways. All

these documents have also elaborated on a number of concepts of water management

including integrated water resource management (IWRM).

Integrated water resource management is a concept that has evolved over the last 80 years

and went through three phases single purpose management of water resources, multiple purpose management of water resources followed by integrated water resource management

(White 1998). A number of policy processes have dealt with water management issues

culminating in the adoption of the concept by the Dublin Conference on Water in 1992 and

by Agenda 21 of the United Nations Conference on Environment and Development. This is

summed up in the Table below.

Why is it that after centuries

of development, governance is

still not adequate?

What have been the milestones in global water

policy?

Why is water multi-layered?


Table 5-4: IWRM Concept Evolution in the International Water Policy Sector

Year International Water

Policy Sector

Developments

Key principles/issues/ targets agreed upon

1972 UN Conference on Human

Environment, Stockholm

Principle 13 of the Declaration: To ensure that water development is

compatible with the need to protect and improve environment

1977 UN Water Conference, Mar

Del Plata in Argentina

Encouraging governments to establish guidelines for effective intervention

plans for comprehensive and effective water resources management

1992 International Conference on

Water and Environment,

Dublin

Harmonization of development and environment; participatory approach to

management ; gender mainstreaming in the provision and management of

water; recognition of water as an economic good; management of

international watersheds endorsed and backed by international agreements.

1992 UN Conference on

Environment and

Development, Rio de

Janeiro

By the year 2000: (i) Put in place appropriate institutional structures and

legal instruments; (ii) establish efficient water-use programs to attain

sustainable resource utilization patterns.

By 2025: achieve sub-sectoral targets of all freshwater programmes based on

General Assembly resolution (financial transfer of 0.7% of GDP from

developed countries to developing countries).

1997 1st World Water Forum,

Marrakech

Renewed partnership to operationalise the Mar del Plata and Dublin

Principles and Chapter 18 of the Rio Summit for sustainability of water

resources.

2000 2nd World Water Forum,

The Hague

Call for coherent national and, where appropriate, regional and international

policies to overcome fragmentation, and for transparent and accountable

institutions at all levels for IWRM.

2002 World Summit on

Sustainable Development,

Johannesburg

By 2005 each state should prepare its IWRM policies including its efficient

use of water plan

2003 3rd World Water Forum,

Kyoto

By 2005 each state is encouraged to prepare its plan of IWRM and its water

efficiency plan.

2005 World Summit on MDGs Added an important proviso to the 2002 WSSD Plan of Implementation

(JPOI): foreign assistance should be provided to developing countries in

preparing IWRM and water efficiency plans as part of comprehensive

national development strategies to achieve the MDGs.

2006 4th World Water Forum,

Mexico

Expressed awareness and responsibility of local and regional leaders

concerning water and sanitation and called on national governments for a

more effective partnership in IWRM implementation

2009 5th World Water Forum,

Istanbul

UNESCO IWRM Guidelines on Consensus for Local and Regional

Authorities for water management in the face of global changes

Source: Agyenim 2010.


Integrated water resource management includes integrated river basin management. Hooper

(2005:9) defines IRBM as an integrated and coordinated approach to the planning and

management of natural resources of a river basin, one that encourages stakeholders to

consider a wide array of social and environmental interconnections, in a watershed context.

Some focus on integrated watershed management (Cardwell et al, 2006:16), some on

catchment management and some on resource management. IWRM combines these ideas and

is defined as A process which promotes the coordinated development and management of

water, land and related resources, in order to maximize the resultant economic and social

welfare in an equitable manner without compromising the sustainability of vital ecosystems

(GWP 2000: 22).

IWRM involves sectoral; geographical; economic, social and environmental; and

administrative integration. It has three pillars an organizational framework, management

instruments and enabling environment (GWP, 2004). IWRM calls for a systems approach in

which the relationships between natural and human systems are studied and managed; a

strategic approach where a choice is made to focus on some specific issues; a partnership

approach where the state and other stakeholders collaborate in water management; and a

balanced approach in which different dimensions are given equal priority. Where it is seen as

a process, IWRM is also seen as a method to mediate between different interests and interest

groups (Genshaw and Born, 2006) and disciplines (Boutkan and Stikker, 2004:151).

Although it is seen as a positive concept to be holistic and comprehensive, it is also seen as

providing little practical guidance (Biswas, 2004), its unclear whether it is a process or a

goal, water is valued differently by different interest groups and this is difficult to take into

account (McDonald & Ruiters 2005), and there is little real scientific consensus on the

content.

In 2008, at the global level, 13% of the worlds populations (1.1 billion people) did not have

access to an improved drinking water source. This percentage varies per region; in the

developed regions less than 1% lacks access, in developing regions 16%, and in sub-Saharan

Africa 40% of the population lacks adequate drinking water. Only 52% of the population of

the intrinsically developing world has access to adequate sanitation; in sub-Saharan Africa

and South Asia this number is even lower (Millennium Development Goals Report 2010).

Access to water and sanitation is thus only a serious problem in the South, and that may be

why the motivation to make it a global agenda item has been weak. One might argue that if

the right to water is seen as a human rights issue, this would justify internationalising the

problem of water (see unit 6.6). Neither the Watercourses Convention nor the Water and

Environmental Summits have adopted this concept, focusing instead on the non-legal concept

of human needs. However, in 2002, a General Comment on the Right to Water was adopted

by the Covenant on Economic, Social and Cultural Rights. The concept of the right to water

has now become enshrined in law. But whether this will have mainstream effects remains to

be seen. On the issue of the human right to water and sanitation, see also 6.6.

What are the arguments supporting

global policy?


Another argument to prioritise water at the global level is the global problem of climate

change and its impacts on the global hydrological cycle. The third critical argument for

globalizing water is the effect of globalisation itself on water which will be discussed further

in the next section.

Point to Ponder: Which global issues affect your country most? Does behaviour of your country also affect other countries?

5.8 The Impacts of Globalisation: a diagonal approach

Contemporary globalisation is a process made possible by two related developments since the

1960s. The first is the compression of time and space due to technological innovation which

particularly transformed communication technology. This in turn allowed the financialisation

of the global economy, in which financial markets have become more important than capital

goods markets.

Central to globalisation are the ideologies of growth-oriented capitalism, liberalization and

privatisation. This implies that the more societies invest, produce and consume the richer

they will become. Growth oriented capitalism and consumerism is based on the use of more

and more resources such as energy and water. The former exacerbates the climate change

problem while the latter exacerbates the existing water problem. At the same time, the social,

environmental and water protection agendas argue that there are limited resources and these

resources need to be used wisely. These two messages are contradictory.

Two points can be highlighted. The first is that the message of privatisation is also being

incorporated in national and regional policy. Since most private sector involvements thus far

have led to a monopoly control of water in a profit-making sector, the price of water has

increased. This might make water unaffordable for the poor, those targeted by the Millennium

Declaration, and this fear drives critics to talk in terms of theft from the poor and the need

to revisit the discussion on a human right to water.

The second argument is that private sector involvement, by definition, implies a legal

contract often not transparent or accessible to the public. Such contracts are governed by the

rules of private (international) law, bilateral investment treaties and / or free trade

agreements. Furthermore, private sector involvement in the context of developing countries

often comes at the cost of demanding state guarantees for the profits to be generated.

Although the legal situation is not yet crystal clear, scholars argue that once countries decide

to privatise and liberalize water, they may in effect lose control over the management of

water; and to the extent that they try to manage this water, they may be sued in foreign courts

and in hard currency (see unit 8).

Point to Ponder: Is your country liberalising water? If so, are the consequences clear?

Why is there tension between

globalisation and

sustainability?

What are key points of

attention in privatisation?


5.9 Conclusion

There is a gradual convergence occurring between the three parallel processes in that some

concepts are increasingly emerging as dominant in the national and regional water law

developments that have been taking place in the last decade. But there are also some

contradictory trends. The first trend is that while governments are seeking effective control

over their water resources by designing new laws, the concepts of private sector involvement

and management at river basin level is leading to an erosion of functional sovereignty over

water. The second trend is that while IWRM includes the jargon of public participation in

decision-making, justified by the need to increase the legitimacy and effectiveness of policy,

initial research shows, inter alia, that such local participation may lead to disintegration of

policy and externalisation of the policy interests of actors at other administrative levels.

5.10 New Terms Used

Boundary demarcation Global water policy Globalisation Integrated Water

Resources Management (IWRM) International drainage basin International river

International watercourse Median line demarcation Multi-layered nature of

local, regional and national water law Navigation Non-transformational uses of

water Riparianism Sovereignty Thalweg demarcation Water conflicts Water

law evolution Water pollution

5.11 References and Further Information

5.11.1 References

Aerts, J.C.J.H. and Droogers, P. (Eds.) 2004. Climate change in Contrasting River Basins: Adaptation Strategies for Water,

Food and Environment.

Agyenim, J.B. (2011). Investigating institutional arrangements for integrated Water Resource Management in Developing

Countries: The Case of the White Volta Basin, Ghana, PhD Thesis, VU University Amsterdam.

Blacks Law Dictionary: Bryan A. Garner (editor in chief), 1999, Blacks Law Dictionary 7th Edition, West Group, St.

Paul, Minnesota, USA.

Boutkan, E. and Sticker, A. (2004). Enhanced Water Resources Base for Sustainable Integrated Water Resources

Management. Natural Resources Forum 28(2):0105.

Cardwell, H.E., Cole, R.A., Cartwright, L.A., & L.A. Martin (2006). Integrated Water Resources Management: Definitions

and Conceptual Musings, Journal of Contemporary Water Research & Education 135:8-18.

CIA (2010), World Factbook 2010, https://www.cia.gov/library/publications/the-world-factbook/

Genshaw, K D & Born S M. (2006). Organisational Dynamics of Watershed Partnerships: A Key to Integrated Water

Resources Management. Journal of Contemporary Water Research Education 135: 56-64.

Gleick (2003), The Water Conflict Chronology, www.worldwater.org/conflict.

Goldfarb, W. (1988) Water Law, Second Edition, Lewis Publishers, New Brunswick.


GWP-TAC (Global Water Partnership-Technical Advisory Committee) (2000). Integrated Water Resources Management.

TAC Background Paper No. 4, GWP, Stockholm, Sweden.

GWP (Global Water Partnership) (2004). Integrated Water Resources Management (IWRM) and Water Efficiency Plans

by 2005. Why, What, and How? TAC Background Paper No. 10, GWP, Stockholm, Sweden.

Hooper, B. (2005). Integrated River Basin Governance: Learning from International Experience. London: International

Water Association Publishing.

Kalpakian, J. (2004) Identity, Conflict and Cooperation in International River Systems, Ashgate Publishers, Aldershot.

La Prensa (2003, 01.02.2011). Corte de La Haya rechaza peticin salvadorea La Prensa, El diario de los

Nicaragenses:23307. Retrieved from http://archivo.laprensa.com.ni/archivo/2003/diciembre/19/elmundo/

Nicol, A. and Shahin, M. (2003). The Nile: moving beyond cooperation. Water Policy Programme, ODI. International

Hydrological Programme (IHP) of the United Nations Educational, Scientific and Cultural Organization

(UNESCO). Technical Document in Hydrology No. 16.

(http://webworld.unesco.org/water/wwap/pccp/cd/pdf/case_studies/nile.pdf)

Nicol, A. (2003): The dynamics of river basin cooperation: The Nile and Okavango basins, in: A. Turton et al. (eds.),

Transboundary Rivers, Sovereignty and Development: Hydropolitical drivers in the Okavango River Basin,

Pretoria: African Water Issue Research Unit, Green Cross International.

Transboundary Freshwater Dispute Database (TFDD) (2008, 01.02.2011), Case Studies-Water Conflict Resolution,

Department of Geosciences, Oregon State University, http://www.transboundarywaters.orst.edu/

Transboundary Freshwater Dispute Database (TFDD) (2002, 01.02.2011), International River Basin Registry,

Department of Geosciences, Oregon State University http://www.transboundarywaters.orst.edu.

UN DESA (2010). The Millennium Development Goals Report. L., United Nations Department of Economic and Social

Affairs.

White, G. F. (1998), Reflections on the 50-year International Search for Integrated Water Management, Journal of Water

Policy 1: 21-27

Villiers, M. de (2001) Water: The fate of our most precious resource. Maurei Books: Boston

5.11.2 Legal materials

Convention on the Law of the Non-Navigational Uses of International Watercourses, New York, May 21, 1997, Doc.

A/51/869 adopted in Resolution A/RES/51/229.

International Convention Concerning The Regime of Navigable Waterways of International Concern, Barcelona, April

20,1921, League of Nations, Treaty Series, Vol. VII, p. 37.

International Court of Justice (1986-1992, 2002-2003) Land, Marine and Island Boundary Dispute between El Salvador

and Hondarus (Nicaragua intervening) - Judgement, http://www.icj-cij.org/docket/files/75/6673.pdf 1986-1992)

International Court of Justice (2005) Boundary dispute between Benin and Niger (river Niger) - Summary of the

Judgement of 12 July 2005, http://www.icj-cij.org/docket/files/125/8230.pdf.

International Court of Justice (2010). Pulp Mills on the River Uruguay (Argentina v. Uruguay): Summary of the Judgment

of 20 April 2010, http://www.icj-cij.org/docket/files/135/15895.pdf.

UN. (2002). Johannesburg Declaration on Sustainable Development, World Summit on Sustainable Development

(A/CONF.199/20). Johannesburg.

The Helsinki Rules on the Uses of the Waters of International Rivers, Adopted by the International Law Association at the

fifty-second conference, held at Helsinki in August 1966. Report of the Committee on the Uses of the Waters of

International Rivers, London, International Law Association, 1967.


5.11.3 Recommended reading

Gupta, J. (2004). (Inter)national Water Law and Governance: Paradigm Lost or Gained?, Inaugural Address as Professor

of Policy and Law on Water Resources and the Environment, Department of Management and Institutions at the

UNESCO-IHE Institute for Water Education in Delft, The Netherlands, 22 March 2004; ISBN: 90-73445-11-6.

5.11.4 Web sites

Transboundary Fresh Water Dispute Database -

http://www.transboundarywaters.orst.edu/database/

Case Studies: Water Conflict Resolution -

http://www.transboundarywaters.orst.edu/research/case_studies/

International Freshwater Treaties Database -

http://www.transboundarywaters.orst.edu/database/interfreshtreatdata.html

International River Basins Register -

http://www.transboundarywaters.orst.edu/database/interriverbasinreg.html

International Water Event Database -

http://www.transboundarywaters.orst.edu/database/interwatereventdata.html

UNESCO - http://www.unesco.org/

Water Portal - http://www.unesco.org/water

World Water Assessment Programme - http://www.unesco.org/water/wwap

From Potential Conflict to Cooperation Potential project (PC-CP)

http://www.unesco.org/water/wwap/pccp/

International Water Management Institute

http://www.iwmi.cgiar.org/

IWMI Publications List http://www.iwmi.cgiar.org/Publications/index.aspx

World Water Council -

http://www.worldwatercouncil.org/

Unit05 Lecture Notes

Documents

Transcript of Unit05 Lecture Notes