TARLOCK, WOUTERS : REFRAMING THE WATER SECURITY DIALOGUE : 20 WATER LAW REFRAMING THE WATER SECURITY DIALOGUE DAN TARLOCK* PATRICIA WOUTERS** 1 INTRODUCTION ± REFRAMING THE WATER SECURITY DIALOGUE Water security attracts considerable attention because it is linked to the growing body of evidence predicting the emergence of a global water crisis (now or soon in the future),1 and urging us all to mobilise more effectively our human, environmental and economic resources as we `hurtle to a scary future'.2 This short article argues that we are witnessing the formation of the perfect storm of food, water and energy shortages ± caused by a combination of population growth, triggering new rural and urban demands, and global climate change, which threatens to decrease the net * Contact email: Dtarlock@kentlaw.edu. ** Contact email: p.k.wouters@dundee.ac.uk. The authors would like to thank Bjùrn-Oliver Magsig, PhD student at the UNESCO Centre for Water Law, Policy and Science, University of Dundee for his capable assistance with this work. 1 See inter alia, United Nations Development Programme Human Development Report 2006 : Beyond Scarcity: Power, Poverty and the Global Water Crisis (Palgrave Macmillan New York 2006) at vi. `Two obvious dangers emerge. First, as national competition for water intensifies, people with the weakest rights ± small farmers and women among them ± will see their entitlements to water eroded by more powerful constituencies. Second, water is the ultimate fugitive resource, traversing borders through rivers, lakes and aquifers ± a fact that points to the potential for cross-border tensions in waterstressed regions. Both dangers can be addressed and averted through public policies and international cooperation ± but the warning signs are clearly visible on both fronts.' See also, 2030 Water Resources Group `Charting Our Water Future ± Economic Frameworks to Inform Decision-Making' (2009) (2009 McKinsey Report) available at http://www.mckinsey.com/App_Media/ Reports/Water/Charting_Our_Water_Future_Full_Report_001.pdf; B C Bates et al `Climate Change and Water: Technical Paper of the Intergovernmental Panel on Climate Change' (2008) (IPPC Water and Climate Report) available at http://www.ipcc.ch/pdf/technical-papers/ climate-change-water-en.pdf. See also, United Nations Children's Fund Water, Sanitation and Hygiene Strategies for 2006±2015 (2005) UN Doc E/ICEF/2006/6, available at http://www.unicef.org/about/execboard/files/06-6_WASH_final_ODS.pdf, which states: `[t]ragically, access to safe, clean water is a luxury for many communities and it is becoming scarcer by the day as climate change dries up the water tables and depletes rainfall, leaving communities to battle the devastating effects of drought'. 2 D Rushe `Hurtling to a scary future' The Sunday Times (3 January 2010) available at http://business.timesonline.co.uk/tol/business/article 6973967.ece. The Institute for the Future's Ten-Year Forecast focuses on five key areas, including `the future of water' as one of these main topics. `Water is a ``huge issue'' that has yet to surface in the developed world', says Marina Gorbis, the Institute's executive director. `A ``blue economy'' is likely to emerge as the cost of water increasingly hits energy, food, manufacturing and other sectors. Local conflicts are already emerging over water.' available supply in many areas of the globe and to aggravate already contaminated supplies.3 As a result, the increased incidences of local and regional water problems might now be more accurately described as comprising a global water security problem. This article examines, through the prism of international law, the evolution of the notion of the global water security discourse, from its origins, through its development to its phoenix-like appearance in security studies, and calls for a radical reframing of the prevailing dialogue. We argue that the real challenges arising from this arena are less likely to be armed conflict, than the need for innovative thinking about the topic, including the investigation for new legal rules, management regimes and smart development project-funding to help alleviate water stresses, and founded upon the fundamental premises of the rule of law, which, in a watercourse context, guarantees all riparian nations (and users) the equitable and reasonable use of the freshwaters from their shared rivers and aquifers. 2 2.1 THE EVOLUTION OF THE WATER SECURITY PROBLEM From secure entitlements to a source of regional conflict Water issues, historically and traditionally, have been addressed at the national or river basin level. In countries with `bad hydrology,' the challenge has been to capture more run-off or to exploit groundwater to meet evolving agricultural, energy, industrial and urban demands. These scales remain the primary focus of water planning and management, but over the last two decades, problems at national and basin level have emerged prominently within a global context. Many countries, especially those with rapidly expanding populations face water stresses as the demand for increased quantities or improved qualities of water outpaces the local supply. Global climate change exacerbates these stresses in complex ways. In addition, there is growing pressure to ensure river and aquatic ecosystem conservation and restoration, resulting in yet more constraints on development options. The responses to these national and regional water conflicts-of-use have been recast as a problem of global security on a par with the prevention of war and terrorism. 3 D Tarlock `How Well Can International Water Allocation Regimes Adapt to Global Climate Change?' (2000) 15 Journal of Land Use and Environmental Law 423±9. THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM 53 54 20 WATER LAW : TARLOCK, WOUTERS : REFRAMING THE WATER SECURITY DIALOGUE The characterisation of water stresses as a security problem has a long pedigree. The fear of inadequate water supplies (or the inability to manage excess supplies) has always generated fear. Fear of drought is eternal. One reads in the Old Testament: `I will make the sky above you as hard as iron, and your soil as hard as bronze, so that your strength shall be spent in vain and your land will bear no crops and its trees no fruit.'4 This famous curse hurled at the Israelites as they are about to enter the Promised Land exemplifies the ever contingent relationship between rainfall and the survival of civilization. In the Biblical creation story, water was created on the second day, and its abundance remained a sign of divine approval throughout the Old Testament ± just as its absence, as illustrated by Leviticus, was a sign of God's anger with humanity. Fear of its absence is almost universal. For example, it is deeply rooted in the development of civilization in the twin arid areas of Mesopotamia as well as in northern China.5 In a modern context, but arising from centuries of discord, India and Pakistan, in agreeing to renew their diplomatic talks, placed water at the centre of their discussions, with some claiming that the regional acts of terrorism were linked to water scarcity and asserting that `Muslims dying of thirst would drink the blood of India'.6 Water shortage fears were carried to the arid Mediterranean7 and then across the new world. However, this fear receded as our faith in science and technology to help us to adapt to harsh climates rose. The emphasis was on human adaptation to climate constraints, which gradually pushed any idea of respect for nature from the story of `civilization as it expanded from the relatively benign climate of the Mediterranean to northern Europe.'8 In the last two centuries, the earlier awe and respect for nature held by premonotheistic societies were completely replaced by the hubris that humans can costlessly improve upon it. Along with the optimistic view that humans always outwit nature, there is a long intellectual tradition of speculation by historians and geographers about the relationships between a civilization's capacity to sustain itself, its climate and landscape, its use of its natural endowments and conflict or social disruption 4 Leviticus 26: 19±20. 5 In the Chinese creation story, after 45,600 years of rule by mythical human-beast emperors, the legendary monarch Fu Xi and his sisterconsort Nu Wu appeared between 2852 and 2734 B.C. on the North China Plain. They are credited with the invention of writing, music, marriage and the worship of a supreme being as well as with water management and flood control `so crucial to the well-being of the Chinese state'. M W Meyer China: A Concise History (Rowman & Littlefield Lanham, MD 2nd edn 1994) at 116. 6 Warning from the leadership of Lashkar-e-Taiba, which carried out the Mumbai attacks, quoted in The Hindustan Times and reported in Circle of Blue Waternews `Pakistan Raises Water Issue during Diplomatic Talks with India' (1 March 2010) available at http://www.circleofblue. org/waternews/2010/world/south-asia/pakistan-raises-water-issueduring-diplomatic-talks-with-india/. Yet Pakistan observers argue that the water issue is a recruitment tool for terrorist groups in their country. 7 The `image of the Virgin Mary in the church of the Impruneta, near Florence, [. . .] was carried in procession to produce rain in times of drought or to stop the rain when there was too much [. . .]' P Burke The Italian Renaissance: Culture and Society in Italy (Princeton University Press Princeton, NJ 1986) at 125. 8 I G Simmons Environmental History: A Concise Introduction (Blackwell Publishers Oxford 1993) at 179. or decay.9 Many scholars have linked the decline of ancient civilizations to various types of human and natural environmental degradation.10 Droughts and unsustainable irrigation practices have been blamed for the decline of Sumerian civilization and others. However, geographical determinism fell out of favour among geographers and historians in the United States, due in part to the Nazis' use of the theory to justify the need for a greater German Reich at the expense of its eastern neighbours,11 but the notion never died. For example, in the midst of the 1945 Potsdam Conference, which carved up Germany and legitimated the Iron Curtain, President Truman startled Generalissimo Stalin and Prime Minister Churchill by announcing that his study of history led him to include that `water, straits and canals and rivers' were the source of 200 years of European wars.12 President Truman's analysis notwithstanding, until the 1990s, the concept of water security in legal terms referred primarily to security of entitlement, and was bound up with rules on allocation (and re-allocation). In market economies, we sought to create secure, quasi-exclusive entitlements from the individual user to the national level in order to encourage investment in water resources development. Socialist countries could create equally secure entitlements by exercising a monopoly on funding and development. The meaning of water security began to change in the 1990s. A new neo-graphical determinism13 developed, which 9 Eg, N Pounds An Historical and Political Geography of Europe (GG Harrap London 1947). 10 J D Hughes Pan's Travail: Environmental Problems of the Ancient Greeks and Romans (The Johns Hopkins University Press Baltimore, MD 1994) at 194 concludes that `[e]nvironmental changes as a result of human activities must be judged to be one of the causes of the decline of ancient Greek and Roman civilization [. . .]'. However, one must be cautious of single factor explanations. The longstanding speculation that drought caused the collapse of Anasazi civilization on the Colorado plateau is now being supplemented by a more nuanced explanation that includes a religious reformation. G Johnson `Vanished: A Pueblo Mystery' New York Times (8 April 2008) available at http://www.nytimes.com/2008/04/08/science/08anasazi.html. 11 Geographical determinism allowed historians to explain the distinctive cultural and economic patterns which developed in particular regions. Environmental determinism paid particular attention to the role of climate on culture and society. However, this simplistic cause and effect relationship was rejected in the United States in the 1920s, and it died after World War II after Nazi Germany used earlier work by German scholars to support racial explanations for alleged superiority of northern European culture and the need for `Lebensraum'. See R Peet `The Social Origins of Environmental Determinism' (1985) 73 Annals of the American Association of Geographers 309±33. As a result of this misuse of science, the emphasis on human adaptation to climate and the landscape gradually receded from the story of `civilization', I G Simmons Environmental History: A Concise Introduction (Blackwell Publishers Oxford 1993) at 179. 12 C L Mee Jr Meeting at Potsdam (M Evans and Company New York 1975) at 197. President Truman was quite peeved when Stalin ultimately refused to include a proposal for an international waterways authority on the conference agenda; ibid at 275±6. 13 See eg D Zhang et al `Global Climate Change, War, and Population Decline in Recent Human History' (2007) 104 Proceedings of the National Academy of Sciences 19214±9 (cooling associated with reduced food production, famine and war in China and Europe between 1400 and 1900 and similar disruptions might result from the adverse impacts of global warming); and W G East The Geography Behind History: How Physical Environment Affects Historical Events (W W Norton & Company New York 1965). The leading proponent of the new determinism is Professor Jared Diamond. His two books, Guns, Germs, and Steel: The Fates of Human Societies (W W Norton & THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM TARLOCK, WOUTERS : REFRAMING THE WATER SECURITY DIALOGUE : 20 WATER LAW produced a renewed interest in the links between climate, geography and society and especially war, or dangerous social disruption. Proponents of international intervention to address environmental degradation expanded the traditional notion of national security as a defined territory defended by military might and began to link the `health' or `ill health' of a nation's environment to its national security.14 A deteriorating environment can be a source of internal conflict, which can spill across borders.15 The more serious risks were linked to insufficient food supplies or mineral wealth competition. This argument was taken up by Warren Christopher, United States Secretary of State during the Clinton Administration. Many students of conflict studies expressed concern that attempts to address water stresses extended beyond the management capability of national governments and would result in various forms of instability, violence, and civil unrest that would extend beyond national boundaries and heighten regional insecurity.16 The risks appear highest in weak `transition' states,17 with expanding populations, and already stressed food supplies, with over-dependence upon domestic agriculture.18 This is not only a problem for the producing country, but local stresses in exporting countries can result in decreased food supplies for importing countries.19 Company New York 1997) and Collapse: How Societies Choose to Fail or Succeed (Viking New York 2005), have triggered a lively debate about the relationship between a nation's natural endowments and its culture. 14 See Chapter 2 `Environmental Change in Security Discourse' in German Advisory Council on Global Change Climate Change as a Security Risk (Earthscan London 2008) available at http://www.wbgu.de/ wbgu_jg2007_engl.html. In 2007, Senators Chuck Hagel and Richard Durbin introduced legislation which requires the US military to play war games to determine how climate change might affect national security. B Bender `Bill Ties Climate to National Security' Boston Globe (9 April 2007) available at http://www.boston.com/news/nation/washington/ articles/2007/04/09/bill_ties_climate_to_national_security/. 15 Eg D Kennedy et al `Environmental Quality and Regional Conflict' (A Report to the Carnegie Commission on Preventing Deadly Conflict, December 1998) available at http://www.ics.si.edu/subsites/ccpdc/ pubs/ken/ken/htm. One of the leading proponents of this theory is Thomas F. Homer-Dixon, His arguments are summarised in Environment, Scarcity, and Violence (Princeton University Press Princeton NJ 2001). 16 CNA Corporation National Security and the Threat of Climate Change (CNA Corporation Alexandria VA 2007) at 13±18; German Advisory Council on Global Change Climate Change as a Security Risk (Earthscan London 2008). See also D Smith and J Vivekanandta A Climate of Conflict: The Links Between Climate Change, Peace and War (International Alert London 2007). 17 The situation in Central Asia demonstrates this with growing unease over the upstream development of hydro-power (in Tajikistan and Kyrgystan) to the dismay of Uzbekistan. `Central Asia's water faultlines include the division of the Caspian Sea between the five littoral states (Azerbaijan, Iran, Kazakhstan, Russia, and Turkmenistan) and a dispute over access to water from the Syr Darya and Amu Darya rivers between upstream states (Kyrgyzstan and Tajikistan) and downstream states (Kazakhstan, Turkmenistan, and Uzbekistan),' C Bajpaee `Asia's Coming Water Wars' Power and Interest News Report (22 August 2006) available at http://www.iwmi.cgiar.org/News_Room/Multimedia/ coverage/pdf/Asia's%20Coming%20Water%20Wars.pdf. 18 Including violence and civil unrest; see A Nyong `Climate-Related Conflicts in West Africa' (2006±07) 12 Environmental Change and Security Program Report 36±43, available at http://wilsoncenter.org/ topics/pubs/Nyong12.pdf. 19 See World Economic Forum Water Initiative `Managing Our Future Water Needs for Agriculture, Industry, Human Health and the Environment: The Bubble Is Close to Bursting: A Forecast of the Main Economic and Geopolitical Water Issues Likely to Arise in the World During the Next Two Decades' (2009) available at http://www.weforum. org/pdf/water/WaterInitiativeFutureWaterNeeds.pdf. The widely accepted view that global warming is here has accelerated this speculation with regard to water and ecosystem change. From the Intergovernmental Panel on Climate Change (IPCC) down, scientists are generally agreed that climate change may result in less net available water in areas that are already waterstressed. Regional instability in Africa and Asia (including the fragile Middle East) is increasing, with reduced influence from the world's major powers. This raises compounding concerns, as population growth bumps up against limited, and often degraded, natural resources, including water. As if food supply concerns were not enough, there is the burgeoning energy problem. Experts predict that energy demands will continue to increase, with supplies, including renewables such as hydro, set to decrease. The numerous scientific studies demonstrating and forecasting the reduced flows for many rivers around the globe means that the potential for increased hydro production will also be diminished.20 The IPPC water report contains numerous examples of water stress across the world, which will only become more difficult in the future, especially when conflictsof-use result in adverse impacts beyond national sovereign borders.21 Increased competition for diminishing quantities and qualities of water resources across sectors and among users raises grave concerns.22 The McKinsey Report predicts that by 2030 more than 40 per cent of the global water demand will come from just four countries (China, India, South Africa and Brazil) and suggests that competing uses will result in a 40 per cent shortage in supply over the same period. A recent OECD/FAO 2009 report catalogues a list of other water-related problems.23 Water-short countries are taking action to address these concerns ± Australia appointed the world's first Minister of Water Security and adopted The National Plan for Water Security, `a bold, new approach designed to ensure rural water use is placed on a sustainable footing within the next decade [. . .] to significantly improve water management across the nation.'24 However, severe water 20 P Robinson `Working Group III: Threats Due to Climate Change ± Global Problems in a Regional Context' in J A A Jones, T G Vardanian and C Hakopian (eds) Threats to Global Water Security (Springer Dordrecht 2009) 281±4 at 283. 21 H Cooley et al `Understanding and Reducing the Risks of Climate Change for Transboundary Waters' (Pacific Institute Oakland CA 2009) available at http://www.pacinst.org/reports/transboundary_waters/ transboundary_water_and_climate_report.pdf. 22 Jones et al (n 20). 23 OECD, Food and Agriculture Organization of the United Nations OECD-FAO Agricultural Outlook 2009±2018 (OECD Publishing Paris 2009) at 68, highlights available at http://www.agri-outlook.org/dataoecd/2/31/ 43040036.pdf. The report states, `Groundwater use for irrigation is above recharge rates in some regions, which is also undermining the economic viability of farming in affected areas and leading to harmful environmental impacts, such as reduced flows of connected surface waters. Farming is a major and growing source of groundwater pollution in some countries, mainly from nutrients, pesticides and salinity. This is of concern where groundwater provides a major share of drinking water supplies for both human consumption and farming. Overexploitation of surface water resources in certain areas is damaging ecosystems by reducing water flows below minimum flow levels in rivers, lakes and wetlands, which is also detrimental to recreational, fishing and cultural uses of these aquatic ecosystems.' At 69. 24 Federal Government of Australia `A National Plan for Water Security' (25 January 2007) available at http://www.nalwt.gov.au/files/ national_plan_for_water_security.pdf. The plan has `a special focus on THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM 55 56 20 WATER LAW : TARLOCK, WOUTERS : REFRAMING THE WATER SECURITY DIALOGUE shortages continue to trouble Australia, and the overallocation of the Murray-Darling Basin (where the bulk of Australia's agricultural water use occurs) is being tackled as a priority action under the National Plan, `with the objective of putting the MDB back on a sustainable track, significantly improving the health of the rivers and wetlands of the Basin, and bringing substantial benefits to irrigators and the community alike.'25 2.2 From armed conflict and social unrest to `blue gold' and the next oil battle-cries Once water availability and security were linked, it became a short step to analogise water to the two natural resources that have each sparked violent conflicts and regional tensions. Numerous books, news stories and research institute reports characterise water as the next oil or `blue gold', despite the many differences between these non-renewable resources and water.26 The reasons for the classifications vary, and some even argue that water will increasingly become a more valuable commodity than oil and move into international markets. Some, such as various international speculators, US oil magnates and even the water-rich Canadian province of Quebec (with declining population) hope to profit from the sale of water resources under their control. And around the world, nation states (and others) are buying or leasing land in foreign countries for agricultural production, spawning further an entire new breed of resource speculators.27 To others, the analogies signal coming conflicts and social unrest, especially in light of the global economic crisis.28 Even the UK has raised concerns about the national security threats related to unsustainable water use.29 the Murray-Darling Basin Commission (MDBC), where the bulk of our agricultural water use takes place. [. . .] The Plan will put irrigators on a more sustainable basis nationally by providing them with incentives to adopt more modern and efficient practices, resulting in greater efficiency and flexibility. The Plan substantially addresses over-allocation in the MDB with the objective of putting the MDB back on a sustainable track, significantly improving the health of the rivers and wetlands of the Basin, and bringing substantial benefits to irrigators and the community alike. It proposes new governance arrangements for the MDB to ensure decisions affecting it are made promptly and with a Basin-wide perspective. The Plan will greatly improve our understanding of water resources nationally, including in northern Australia, and lay the groundwork for more timely decision making in the future.' At 3. 25 ibid. 26 See eg http://www.bluegold-worldwaterwars.com/and http://peak water.org/. 27 Global Risk Network of the World Economic Forum `Global Risks 2009: A Global Risk Network Report' (2009) at 17, available at http:// www.weforum.org/pdf/globalrisk/2009.pdf. 28 J Scheffran `The Gathering Storm: Is Climate Change a Threat to Security?' (2009) 15 Security Index 21±31 at 24; see also M Kugelman, S L Levenstein (eds) Land Grab? The Race for the World's Farmland (Woodrow Wilson International Center for Scholars Washington DC 2009) at 75. 29 `When ``virtual water'' is taken into account, the average daily water footprint of people in the UK is 4,643 litres per person, of which about 3,000 litres is imported, according to environmental charity WWF. [. . .] The report concludes that the UK government should put water at the centre of its international development policy and calls on the UK to take a lead by reducing water consumption;' see A Howarth `World Water Crisis Warning to UK' The Scotsman (19 April 2010) available at http://news.scotsman.com/uk/World-water-crisis-warningto.6235672.jp. See also The Royal Academy of Engineering `Global Water Security: An Engineering Perspective' (2010) available at 3 3.1 THE NEED FOR A NEW DIALOGUE Water stress as a management and justice problem Three water dialogues are occurring simultaneously throughout the world. In many countries with `bad hydrology', the traditional conservation dialogue prevails ± run-off must be captured and redistributed, and aquifers exploited to meet agricultural, energy, industrial and urban demands. At the international level, two other dialogues are taking place. The first, pushed by environmental NGOs, seeks to make river and aquatic ecosystem restoration a priority in national and international allocation (and re-allocation) regimes. Secondly, in recent years, the resolution of national and regional water conflicts, driven by scarce and polluted supplies, has been recast as a problem of global security on a par with the prevention of war and terrorism. This article argues that many areas of the world face water stresses and that these stresses may increase in the future, but also argues that the focus on the military analogy detracts from the task of finding new and effective legal rules and management regimes to help alleviate water stress, and thus frustrates approaches that might offer new insights in addressing old, but evolving complex problems. Water stress is real. The question is how serious is the future risk of large-scale water-driven violence? To date, the lessons of history are that the risk is not great, but this is not a definitive answer. There are documented instances of violence connected to water disputes, but most of this, especially related to water shortage,30 is localised and short-lived,31 as demonstrated in the Water Conflict Chronology maintained by the Pacific Institute.32 The latest version of this work starts with the Sumerian account of a flood to punish the sinful abuse of the earth and ends with a Hezbollah attack on an Israeli wastewater treatment plant. However, most of the modern serious incidents involve either the targeting of water facilities during a war,33 or occur in small village disputes in Asia, Africa and Latin America. While it might be tempting to analogise water to the two natural resources which have sparked violent conflicts and regional tensions, http://www.ice.org.uk/downloads/gws.pdf, which states, `[t]he importance of water security to national security should be a core component of policy making. Water security should be considered as part of climate change mitigation and adaptation policy and the global impacts on water security of our national and international policies need to be assessed. [. . .] Given the impending worsening of water security, particularly in some developing countries, the UK Government should put water at the centre of its international development policy.' At 6. 30 Water management problems arise from either a lack or an excess of water. This article focuses on problems of inadequate supply but it recognises that widespread flooding can be a serious social problem as a source of insecurity. 31 D Phelps `Water and Conflict: Historical Perspective' (2007) 133 Journal of Water Resources Planning and Management 382±5. 32 Pacific Institute `Water Conflict Chronology' (November 2009) available at http://worldwater.org/chronology.html. See also W Barnaby, `Do nations go to war over water?' Nature vol 458 19 March 2009 at 282. 33 Desalinisation plants and irrigation works were targeted by Iraq during the Gulf War. J Delli Priscoli `Water and Civilization: Conflict, Cooperation and the Roots of a New Eco-realism' in Proceedings of the Eighth Stockholm World Water Symposium (10±13 August 1998, Stockholm). THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM TARLOCK, WOUTERS : REFRAMING THE WATER SECURITY DIALOGUE : 20 WATER LAW (and certainly sensationalises the issue), we argue that the current concept of water stress as a source of armed conflict and regional unrest is too broad to draw serious policy conclusions, and, might prove an unhelpful distraction that diverts from focussing instead on exploring more fully the range of options available to countries to address water stress.34 The concept of military security is, in its essence, a zero sum game; water resources management (including water law), by comparison, offers a range of opportunities for balancing interests to meet security needs related to such core issues as availability, access and addressing conflicts-of-use.35 `Blue gold' or the next oil analogy is problematic conceptually, with several key shortcomings. First, unlike oil (or gold), water is universally, albeit unequally, distributed throughout the world. Secondly, in contrast to oil, it is not always economically efficient to move water long distances. The demand for small quantities may not justify the infrastructure. Thirdly, water has economic value, but it does not trade in world markets. Raw water, running free or stored or diverted, is most likely not a `good' under the GATT.36 The question of who is entitled to secure access to water, and what the flow should be, within or beyond national boundaries raises issues well beyond the blue gold/next oil context. In fact, despite serious water stress in some regions, disputes have been avoided in large part, with a burgeoning number of international agreements setting forth plans for joint management regimes.37 Is this not a more relevant line of enquiry ± exploring the relevance and role of water law in addressing water security issues and inviting innovative thinking within and beyond the discipline? 3.2 The rule of international law: freedom from external or internal wars or acts of aggression as the foundation for addressing water stress For the purposes of this discussion, the starting point must be the entitlement±security issue. This is addressed, in the first instance, by the rules of international law (the law of nations), reflected predominantly in the UN Charter, and constructed upon the dual 34 A Wolf `Possible Futures for Transboundary Waters' World Politics Review 20 Jan 2010 at http://www.worldpoliticsreview.com/articlePrint. aspx?ID=4961; see also Pacific Institute (n 32). 35 P Wouters, S Vinogradov and B-O Magsig `Water Security, Hydrosolidarity and International Law: A River Runs through It . . .' (2009) 19 Yearbook of International Environmental Law 97±134; see also P Wouters `Water Security: What Role for International Water Law?' in F Doddle (ed) Human and Environmental Security: An Agenda for Change (Earthscan Publications London 2005) 166±81. 36 See E B Weiss `Water Transfers in International Trade Law' in E B Weiss, L B de Chazournes and N Bernasconi-Osterwalder (eds) Fresh Water and International Economic Law (Oxford University Press Oxford 2005) 61±92. 37 See Cooley (n 21) at 2: `The good news is that water disputes are generally resolved diplomatically, and shared water resources are often a source of cooperation and negotiation. An estimated 300 agreements have been developed between riparian States ± those States that border a shared river. But the long history of violence associated with transboundary water resources highlights the challenges associated with managing shared water resources.' pillars of promoting international cooperation and achieving common aims,38 directed at maintaining regional peace and security and ensuring the fundamental freedoms of all (Article 1(1)). The former UN Secretary General in his `Larger Freedoms' report, calling for UN reform, reiterates the present-day importance of the universal rules advanced under the UN Charter, including the fundamental freedom from fear of violence, aggression, or war.39 Thus, despite the reality of water stress around the world, this in no way justifies breaches of the peace or aggression against national populations, within or beyond national borders.40 And this clearly precludes the use of water as a tool or object of military aggression.41 At the heart of international law then, is this promise of justice, both as a fundamental premise, but also as a nonderogable core principle.42 3.3 Inadequate water for food, energy, sanitation Modern international law has expanded the traditional idea of freedom from supply disruption to the provision of a minimum level of water.43 Further, the global community has demonstrated its collective commitment to improving universal access to drinking water and adequate sanitation under the Millennium Development Goals (MDGs).44 However, water stress continues to mount around the world. With the 2015 deadline for delivery on the MDGs fast approaching, last year's report on progress confirmed disappointing results to date and called for accelerating the pace of engagement.45 A study by the UN FAO (The State of Food Insecurity in the World),46 reflected in a joint OECD/FAO report, cites the compounding problems associated with water stress, `Water scarcity is an increasing threat in many regions, as water pollution and consumptive use reduce available sources, while 38 P Weil `Towards Relative Normativity in International Law?' (1983) 77 American Journal of International Law 413±42 cites Max Huber, stating that `international law has the object of assuring the co-existence of different interests which are worthy of legal protection'. At 418. 39 See K Annan `In Larger Freedom: Towards Development, Security and Human Rights for All' (2005) UN Doc A/59/2005. 40 P Sands, B N GhraÂlaigh `Human Rights, International Justice and the Rule of Law' in J Astle, M Bell and A Murray (eds) Globalisation ± A Liberal Response (Centre Forum London 2007) 44±62, available at http://www.centreforum.org/assets/pubs/globalisation-final.pdf. 41 See discussion in Wouters, Vinogradov (n 35) at 122±6. 42 J Waldron `The Rule of International Law' (2006) 30 Harvard Journal of Law and Public Policy 15±30. 43 UN Committee on Economic, Social and Cultural Rights (2002). General Comment no 15: The Right to Water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 29th Sess, UN Doc E/C 12/2002/11. See also the discussion in Wouters, Vinogradov (n 35). 44 For further information see http://www.un.org/millenniumgoals/. 45 UN Secretary General Ban-Ki Moon's preface asserts: `[t]he global community cannot turn its back on the poor and the vulnerable. We must strengthen global cooperation and solidarity, and redouble our efforts to reach the MDGs and advance the broader development agenda. Nothing less than the viability of our planet and the future of humanity are at stake'. See United Nations The Millennium Development Goals Report 2009 (United Nations New York 2009) available at http://www.un.org/millenniumgoals/pdf/MDG_Report_2009_ENG.pdf. 46 Food and Agriculture Organization of the United Nations The State of Food Insecurity in the World (FAO Rome 2009) available at http://www.fao.org/docrep/012/i0876e/i0876e00.htm. THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM 57 58 20 WATER LAW : TARLOCK, WOUTERS : REFRAMING THE WATER SECURITY DIALOGUE populations grow and competition between different uses increases. In 2005, 35 per cent of the population of the OECD was living in areas characterised by severe water stress, compared with 44 per cent worldwide.47 At a global level, some 1.2 billion people live in basins where the physical scarcity of water is absolute (human water use has surpassed sustainable limits).48 By 2025, 1.8 billion people will be living in countries or regions with absolute water scarcity, and two-thirds of the world population could be under stress conditions, mostly in non-OECD countries'.49 Despite many best efforts, including the continued call for integrated management, the problems continue to grow.50 4 THE NEW CONSTRUCT: SUSTAINABLE HYDRO-COMMONS DEVELOPMENT AND MANAGEMENT In the current global context, addressing water security challenges requires new thinking. The next part considers briefly how water law might inform the reframing of the global water security dialogue. 4.1 Revisiting the role of international (water) law ± platform for regional peace and security International law, as reflected in the UN Charter, provides the overall guidance for state-state relations over international waters,51 identifying the promotion of international peace and regional security and the achievement of fundamental freedoms as the cornerstone principles for international relations.52 The ongoing reform of the UN calls for a return to these core elements, and urges nation states to find a new way for collective action as an essential prerequisite to tackle global challenges ± `After a period of difficulty in international affairs, in the face of both new threats and old ones in new guises, there is a yearning in many quarters for a new consensus on which to base collective action'.53 The discussion must focus first on the more broad question related to the rule of law in the context of international relations, where sovereign 47 OECD Environmental Outlook to 2030 (OECD Paris 2008) summary available at http://www.oecd.org/dataoecd/29/33/40200582.pdf. 48 Comprehensive Assessment of Water Management in Agriculture Water for Food, Water for Life: A Comprehensive Assessment of Water Management in Agriculture (Earthscan London 2007) available at http:// www.iwmi.cgiar.org/assessment/Publications/books.htm. 49 See OECD, Food and Agriculture Organization of the United Nations OECD-FAO Agricultural Outlook 2009±2018 (OECD Publishing Paris 2009) at 68. 50 S Hendry `River Basin Management and the Water Framework Directive: In Need of a Little Help?' (2008) 19 Journal of Water Law 150±6. 51 N Matz-LuÈck `The Benefits of Positivism: The ILC's Contribution to the Peaceful Sharing of Transboundary Groundwater' in G Nolte (ed) Peace through International Law ± The Role of the International Law Commission: A Colloquium at the Occasion of Its Sixtieth Anniversary (Springer Heidelberg 2009) 125±50. 52 See Nolte (ibid). 53 UN Secretary General Report (n 39) at 3. `In a world of interconnected threats and challenges, it is in each country's self interest that all of them are addressed effectively. Hence, the cause of larger freedom can only be advanced by broad, deep and sustained global cooperation among States. Such cooperation is possible if every country's policies take into account not only the needs of its own citizens but also the needs of others. This kind of cooperation not only advances everyone's interests but also recognizes our common humanity.' At 6. states are the key actors. Perhaps revisiting the fundamentals of the past will provide some guidance for the future. As a precursor to the UN Charter, the Atlantic Charter, signed by President Roosevelt and Prime Minister Churchill following their historic meeting (14 August 1941), expressed their agreement to `endeavour [. . .] to further the enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity,' and expressed their `. . . desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labour standards, economic advancement and social security'. This initial move toward principles based upon goodneighbourliness and the assurance of human dignity, later codified by the United Nations, forms the basis for the collective interdependent international relations of states.54 Considered within the current global water context, this provides the platform for a communityof-interests based approach towards the management of the world's shared water resources and can be seen as the impetus for the so-called H20 paradigm ± for collective action across boundaries based upon hydrodiplomacy; hydro-solidarity and including law (opinio juris) as part of the response.55 International water law is founded upon interdependent relationships, and the fundamental rule of law principle that promotes the peaceful management of shared resources. As it has evolved, especially over the past 50 years,56 the body of rules of international law that govern international watercourses is universally identifiable.57 Contained in customary norms and treaty law, international water law comprises a significant body of substantive and procedural rules,58 reflected broadly in the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UN WC),59 which, although not yet in force, currently 54 The notion of `good neighbourliness' is at the heart of international law and the UN Charter and has been endorsed in international treaty practice and supported by numerous UN declarations and resolutions. Thus, the UN General Assembly in its Resolution `Development and strengthening of good-neighbourliness between States' reaffirmed `that good-neighbourliness fully conforms with the purposes' of the UN and shall be founded upon the strict observance of the principles of the UN as embodied in its Charter and in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States; see A/RES/43/171 (9 December 1988) para 1. 55 See P Wouters, D Ziganshina `Tackling the Global Water Crisis: Unlocking International Law as Fundamental to the Peaceful Management of the World's Shared Transboundary Waters' in R Grafton, K Hussey (eds) Water Resources Planning and Management: Challenges and Solutions (Cambridge University Press Cambridge forthcoming). 56 M Koskenniemi From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press Cambridge 2005). 57 S C McCaffrey The Law of International Watercourses (2nd edn Oxford University Press Oxford 2007). 58 S Vinogradov, P Wouters and P Jones Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law (UNESCO Paris 2003) at 12, available at http://unesdoc.unesco.org/. 59 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1997 (not yet entered into force) UN Doc A/51/869, reprinted in 36 ILM 700 (1997) (UN Watercourses Convention). To enter into force, 35 countries have to ratify the Convention; as of March 2010, the convention had sixteen signatories and eighteen parties. For up to date information, visit http://treaties.un.org. THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM TARLOCK, WOUTERS : REFRAMING THE WATER SECURITY DIALOGUE : 20 WATER LAW is the subject of an international ratification campaign60 supported by the UN,61 and constitutes a framework instrument for international watercourse agreements and regimes.62 The governing rule of `equitable and reasonable utilisation', found in both customary and treaty law and endorsed in state practice, provides the flexible legal prescription for determining watercourse states' duties and obligations regarding the use of their shared freshwaters. Under this rule, all relevant factors are to be identified and considered together on the basis of the whole, in each specific situation where a new or increased use is proposed, in the determination of the legality of the planned measure.63 Importantly, this overarching substantive rule is supported by rules of procedure,64 institutional mechanisms65 and dispute avoidance/settlement provisions,66 contained in most of the treaties covering transboundary waters. Together, these five constituent elements of transboundary watercourse regimes ± scope, substantive rules, procedural rules, institutional mechanisms and dispute settlement ± provide a framework for the peaceful management of the world's shared freshwaters. Addressing these issues within an agreement or arrangement between riparian states offers strong potential for cooperative and collective approaches and activities,67 confirmed by a survey of state practice in this area and considered critical for addressing the water stress challenges of the future.68 60 A Rieu-Clarke `The Role and Relevance of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses to the EU and its Member States' (2008) 78 British Yearbook of International Law 389±428. 61 See United Nations Secretary-General's Advisory Board on Water and Sanitation `Hashimoto Action Plan: Compendium of Actions' (2006) available at http://www.unsgab.org/docs/HAP_en.pdf; and United Nations Secretary-General's Advisory Board on Water and Sanitation `Hashimoto Action Plan II: Strategy and Objectives through 2012' (2010) available at http://www.unsgab.org/HAP-II/HAP-II_en.pdf. 62 P Wouters et al Sharing Transboundary Waters: An Integrated Assessment of Equitable Entitlement: The Legal Assessment Model (UNESCO Paris 2005); S Vinogradov, P Wouters and P Jones (n 58). 63 1997 UN Watercourses Convention art 5. 64 Vinogradov, Wouters (n 58) at 12. 65 The role of institutional mechanisms as part of the legal regime managing transboundary waters cannot be under-estimated. State practice from across the globe demonstrates the functional utility of river basin organisations, and Meetings of the Parties, as important forums for preventing disputes and enhancing the cooperative management of shared freshwaters. See P Wouters `The Relevance and Role of Water Law in the Sustainable Development of Freshwater ± from ``Hydrosovereignty'' to ``Hydrosolidarity''' (2000) 25 Water International 202±7. 66 Geneva Strategy and Framework for Monitoring Compliance with Agreements on Transboundary Waters: Elements of a Proposed Compliance Review Procedure (Expert's Report) UN Doc MP WAT/ 2000/5 and Add 1, 12; and also P Wouters `Universal and Regional Approaches to Resolving International Water Disputes: What Lessons Learned from State Practice?' in International Bureau of the Permanent Court of Arbitration (ed) Resolution of International Water Disputes (Kluwer Law International The Hague 2003) 111±54. 67 S C McCaffrey `The Need for Flexibility in Freshwater Treaty Regimes' (2003) 27 Natural Resources Forum 156±62. 68 One of the conclusions in a recent study: `Therefore, adopting an effective international legal framework is a critical step for addressing future challenges, particularly climate change', H Cooley et al `Understanding and Reducing the Risks of Climate Change for Transboundary Waters' (Pacific Institute Oakland, CA 2009) at 29, available at http:// www.pacinst.org/reports/transboundary_waters/transboundary_ water_and_climate_report.pdf. 4.2 The design of nested `good' management/ governance institutions at the various river basin scales including enhancing local capacity Good water governance has been promoted as an important foundation for improved water resources management at all levels ± international, regional, national and user.69 Indeed, international institutional mechanisms ± such as joint bodies and river basin organisations ± play important roles in managing transboundary watercourses around the world.70 For example, in Europe, the 1992 UN ECE Helsinki Water Convention71 recommends that Riparian Parties establish joint bodies,72 and under Article 17 establishes a mechanism called the `Meeting of the Parties' (MOP), which serves as a forum,73 both informally and formally, to implement the agreement, through regular meetings74 and an agreed joint work programme.75 This model has resulted in nested levels of governance, with basin-specific agreements concluded in accordance with the umbrella instrument.76 In other regions (Asia, Southern Africa, North America), river 69 The term `governance' is used rather indiscriminately in the field of water resources management, and has a range of meanings across disciplines. In the water law arena it has evolved into a rather technical definition to mean the system under which water resources are managed. See P Wouters, A Rieu-Clarke `The Role of International Water Law in Ensuring ``Good Water Governance'': A Call for Renewed Focus and Action' (2004) 15 Journal of Water Law 89±92; and A Allan, P Wouters `What Role for Water Law in the Emerging ``Good Governance'' Debate?' (2004) 15 Journal of Water Law 85±8. A Rieu-Clarke, A Allan `Role of Water Law: Assessing Governance in the Context of IWRM ± An Analysis of Commitment and Implementation in the Tagus and Sesan River Basins' STRIVER Report no D6.3, available at http:// kvina.niva.no/striver/Portals/0/documents/STRIVER_D6_3.pdf. For a summary of the evolution of the concept, see Governance and Development (World Bank Washington DC 1992); and also Asian Development Bank `Governance ± Sound Development Management' (1995) http://www.adb.org/Documents/Policies/Governance/default.asp (identifies four key elements of governance: predictability, participation, transparency and accountability); UNDP `Governance for Sustainable Human Development' (1997) http://mirror.undp.org/magnet/ policy/ (refers to participation, transparency, accountability, rule of law, responsiveness, consensus orientation, effectiveness and efficiency, equity and strategic vision as elements of good governance). D Kaufmann, A Kraay and M Mastruzzi Governance Matters VII: Aggregate and Individual Governance Indicators 1996±2007 (World Bank Washington DC 2008) available at http://go.worldbank.org/ 2E0SXCR850. 70 Examples include, inter alia, the Mekong Commission, the International Joint Commission (Canada/USA); the International Boundaries Water Commission (USA/Mexico). 71 UN Economic Commission of Europe, Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992 (entered into force 6 October 1996) reprinted in 31 ILM 1312 (1992) art 2(2)(b) (UNECE Helsinki Convention). 72 ibid art 9(2). 73 This dispute avoidance approach to treaty implementation finds examples across the environmental law field; see A Boyle `UNCLOS, the Marine Environment, and the Settlement of Disputes' in H Ringbom (ed) Competing Norms in the Law of Marine Environmental Protection (Kluwer Law International The Hague 1997) 241±56. 74 UNECE Helsinki Convention (n 71) art 17. 75 UNECE (2009) Draft Guide to implementing the Convention ECE/ MP.WAT/2009/L2. Meeting of the Parties to Convention on the Protection and Use of Transboundary Watercourses and International Lakes 5th session, 10±12 November 2009, Geneva. 76 P Wouters, S Vinogradov `Analysing the ECE Water Convention: What Lessons for the Regional Management of Transboundary Water Resources?' 2003/2004 Yearbook of International Cooperation on Environment and Development 55±65. THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM 59 60 20 WATER LAW : TARLOCK, WOUTERS : REFRAMING THE WATER SECURITY DIALOGUE basin commissions are responsible for the implementation of regional treaties, with this global state practice providing varied examples of nested governance arrangements that have evolved to meet regional needs.77 At the national level,78 the need for effective governance is perhaps even more important, since sovereign states are the key actors in international relations. The clear link between national economic welfare and effective water resources management, especially considered within the context of the global commitment to achieve the MDGs, highlights the need for joined-up thinking on the matter of good water governance. `However well crafted on paper, investment strategies to achieve the Millennium Development Goals will not work in practice unless supported by states with transparent, accountable systems of governance, grounded in the rule of law, encompassing civil and political as well as economic and social rights, and underpinned by accountable and efficient public administration. Many of the poorest countries will need major capacity-building investments to put in place and maintain the necessary infrastructure and to train and employ qualified personnel. But without good governance, strong institutions and a clear commitment to rooting out corruption and mismanagement wherever it is found, broader progress will prove elusive.'79 At the regional level, leadership in supporting this investment in good water governance comes from a range of actors, including public and private sector actors, UN bodies, regional development banks, bilateral donors and NGOs ± the pressing question now is how this work can better integrate the rule of law imperative.80 The Asian Development Bank, as just one example, has played a strong role in devising and rolling out water policy initiatives and links these also with social and economic concerns of the region.81 However, in the final analysis, leadership must come from the ground, with local needs effectively captured and communicated fully, and this requires targeted support to enhance capacity meaningfully with a residual long-term footprint, and including improved expertise in water law as part of the package. This is especially important within a developing country context, where poverty complicates the security of entitlement for the weakest and the voiceless, and presents a compelling case for the guarantee of the rule of law. 77 Wouters (n 66). 78 Hendry (n 50). 79 K Annan (n 39) at 13. See also Transparency International Global Corruption Report 2008 ± Corruption in the Water Sector (Cambridge University Press Cambridge 2008). 80 See Wouters, Vinogradov (n 35). 81 The connection with global economic welfare cannot be overstated ± effective water resource management will have an impact on the socio-economic situation of states, communities and individuals. For example, the Asian Development Bank has convened recently a meeting of leading officials from Asia to discuss the lessons of the global economic and financial crisis, and consider policy adjustments in response and as preventive measures. See Asian Development Bank `Top Asian Officials to Discuss Lessons of Financial Crisis, Policy Responses' (7 January 2010) available at http://www.adb.org/Media/ Articles/2010/13131-asian-financial-crisis/. 5 OBSERVATIONS AND CONCLUDING REMARKS Reframing the water security discourse as one linked to the higher-level objectives of the law of nations, reflected in the UN Charter, including the rule of law, and locating it beyond the constrained optics of the traditional military security approach places this discourse within the more dynamic context that it requires. Conflicts-of-use over water will result in security issues, at the local (security-of-access) and regional scales (international peace and national security). How we approach these issues depends in part on who is asking the question ± and in the past, and present, too often the water security discourse has been constrained by silos (sectoral, disciplinary and mindset). In addition to this dysfunctional approach, the relevance and role of law, when considered, has been uni-dimensional and almost static and problematic in its application to the overarching problematique. What is needed is a revolutionary re-think of the conceptual framework for water security, where the contribution of (water) law is more dynamically considered and integrated. The question now for lawyers is whether or not we can do our part in developing this new construct, in piecing together more creatively our contribution to the water security discourse, woven around the fabric of the rule of law.82 International water law has made a major contribution to the great projects of national security and sustainable development by driving home the basic principle that common rivers and associated groundwaters should be shared by all riparian states. While state practice may reveal a bias for unilateral action, ie permitting a state to decide unilaterally what its equitable share is and placing the burden on other riparians to object ± this could be addressed with the entry into force of the UN Watercourses Convention, which contains a set of procedural rules that would impose notice and exchange of information requirements in such a context. Further, the convention, founded upon notions of equity, reasonableness and promoting the full participation of all watercourse states, can be read as presuming against unilateral action that adversely affects riparian neighbours. This framework instrument provides a clear set of rules aimed at reinforcing the right of all watercourse states to have their equitable and reasonable use of shared freshwaters (defined broadly) determined in consultation with all affected riparian states and protected by the emerging duties to manage and develop these common rivers cooperatively and comprehensively.83 As such, it promotes the peaceful management of the world's shared international waters, in direct alignment with the core principles of the UN Charter. And yet ± global water problems continue to arise. How can the rule of law contribute more fully to addressing the global water security challenge, and, more importantly, how might we (as lawyers) introduce, develop and share this perspective more effectively across sectoral, disciplinary and national borders? 82 See Wouters, Ziganshina (n 55). `. . . [T] the end of law . . . is [its] . . . contribution to the achievement of a public order of human dignity' as argued by W. Michael Reisman `Theory About Law: Jurisprudence for a Free Society' (1999) 108 Yale LJ 939. 83 D Tarlock `Four Challenges for International Water Law' (2010) 23 Tulane Environmental Law Journal 1. THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM