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Global Challenges For Water Governance: Legal & Regulatory Frameworks

Congress: 2015
Author(s): Joelle Hervic (North Perth, Australia)


Keyword(s): Sub-theme 7: Global challenges for water governance,
AbstractINTRODUCTION Humanity faces enormous challenges not the least of which are water shortages. Although the linkage between water and energy is widely recognized, the implications of such linkage and the growing limitations of water availability are not. The continued operation of conventional electricity generating power plants and water-intensive mining is unsustainable -- because of their impacts on global warming and their profligate use of water and - in the case of hydraulic fracturing and other mining processes -- also risking irreversible water contamination also to ecosystems. I will be discussing the interconnectedness of energy and water and the importance of recognizing that water is scarce -- and the world's most important resource -- and managing it accordingly. Truly, water is life. Choices need to be made now and action taken to address this critical situation globally to establish robust legal frameworks that protect water and ensure its efficient and equitable usage. My objective is to identify ways in which water can be better managed as part of a different legal and regulatory paradigm. This involves surveying present weaknesses and threats to the effective legal management of water. Currently companies and their investments are protected by bilateral and multilateral agreements that are backed by powerful means of enforcement through investor-state arbitration enabling companies to challenge countries' efforts to protect resources including water. In addition the ability to claim damages that are often cripplingly high disempowers countries and communities from the ability to protect ecosystems and water. The present legal regime tips the scales in favor of investors at the expense of local populations. Recognizing that the present investor rights that are enshrined and protected in trade treaties are incompatible with effective regulation of water requires alternative legal regimes in particular at international levels and restricting the present international system of investor protection. The case study of El Salvador will highlight the deficiencies of water governance today and identify risks in the present national and international legal frameworks. This will require rethinking and reframing our approach to water to set down new parameters that maximize and leverage the best of existing legal frameworks: I will be advocating for the reinvigoration and strengthening of the Commons, a legal doctrine which is at present overlooked or at best underutilized. METHODS/MATERIALS --. I will examine as a current case study the lawsuit by a Canadian/Australian joint venture comprising Pacific Rim/Oceana Gold which was planning an open-pit cyanide-leaching mine, a water-intensive operation in an area of El Salvador that threatens the country's last major water resource and risks further contaminating already compromised water supplies. El Salvador declined to issue a permit and has committed to maintain a de facto moratorium on mining. Pacific Rim is now suing El Salvador and seeking US$301 million in damages in compensation for lost future profits and exploration costs, far in excess of the $77 million that the company claims to have invested so far and representing almost 2% of El Salvador's gross domestic product. This lawsuit has huge implications and epitomizes the global tension between global development and environmental sustainability.. I will also examine the commons or public trust doctrine as a tool to empower communities to protect water and ecosystems. The commons or public trust doctrine is available to empower communities to protect water for consumptive and environmental use. It is an ancient doctrine with its origins in Roman law and is recognized in common law countries which include the US, India and Australia. The Earth can be regarded as one giant global commons or as interconnected local commons. Either way the concept of the commons turns current water planning on its head. Managing water as a commons means that water is available for people and ecosystems. It will also require the establishment of an international environmental court and enforcement agency to implement and enforce. RESULTS AND DISCUSSION -- I will examine the findings of the case study of El Salvador and how, with taking the existing commons doctrine we can transform our approach to water, de-commodify and protect it. .This will include managing demand, changing existing practices and implementing transformative water management practices. There are many compelling reasons to reduce our use of fossil fuels and reliance on conventional electricity generating power plants -- not only to reduce the risks of climate change but also to protect dwindling sources of freshwater and to stop the world from sliding into geopolitical turmoil. To do so we need to revolutionize water management. This will require transcending the current view of water as a mere commodity to be bought and sold like any other. In addition, without enforcement mechanisms available to communities to protect precious water supplies and catchments, the constitutionally recognized right to water in Latin America will remain a token, empty right. CONCLUSION -- Global standards and enforcement need to be set recognizing that water is the world's most important resource not a mere commodity or adjunct to mining and energy and other corporate interests. In some parts of the world where water is the most stressed all fossil fuel production will need to be shut down and in the rest of the world, reduced. Alternative sources of electricity and energy not requiring massive amounts of water are required in addition to alternative cooling mechanisms in conventional power generation; water conservation; improving energy efficiency and reducing energy usage. 1. Moore, Jen et al. (2013) Debunking 8 Falsehoods by Pacific Rim Mining and Oceana Gold in El Salvador http://www.ips-dc.org/wp-content/uploads/2014/03/Eight-Falsehoods-Final-March-17-2014-WEB.pdf 2.Center for International Environmental Law (CIEL), “Submission of Amicus Curiae Brief to Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12,” May 20, 2011
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