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Multi-level Water Governance: A Comparative Analysis Between The Great Lakes And The Amazon

Congress: 2015
Author(s): Julia Cadaval Martins
Georgetown University Law Center1

Keyword(s): Sub-theme 15: Water law,
Abstract

Julia Cadaval Martins, Georgetown University Law Center*

Introduction

Current trends in environmental policy and research increasingly promote cooperative and participatory governance in multi-level systems as a necessary step to effective and sustainable management. The US-Canada Great Lakes Water Quality Agreement of 2012 [2012 GLWQA] represents one of the most innovative international agreements related to transboundary water resources currently in place. It incorporates advanced approaches to international cooperation found in international law, relying on public consultation and scientific research, including accountability, precautionary approach, and polluter pays principles, as well as embracing basin ecosystem and climate change concerns. For those reasons, it may serve as a useful reference document for the analysis of other international water agreements with regards to the adoption of multi-level cooperation measures. One important governance trend found in the 2012 GLWQA is the role of cooperation and consultation with subnational governments (State and Provincial governments, Tribal Governments, First Nations, Métis, Municipal Governments, watershed management agencies, other local public agencies, downstream jurisdictions) and the public.

On the other hand, when compared with the instruments found in the 2012 GLWQA, the governance of the Amazon Basin seems extremely concentrated. The basin is in fact governed by a treaty that emerged from interests in securing national sovereignty in light of fears of international intervention, and the desire to develop the economic potential of the region's natural resources. The vast extension of the Amazon River Basin -- which runs for approximately 7,100 km from its source in Peru to the Atlantic Coast of Brazil and is shared by eight different countries -- means that management is a significant challenge. In fact, the area has been struggling in the recent years with environmental, monitoring and implementation challenges that could, potentially, benefit from new mechanisms of cooperative governance.

The main reasons for focusing on mechanisms of governance that include multiple levels of government are the potential benefits of improved legitimacy and efficiency in the management of water resources. This analysis should provide some guidance to the challenge of building institutions that can promote the effective multilevel cooperation needed to manage transboundary water resources.

Methods

In this paper, I compare the 2012 GLWQA, and the Amazon Cooperation Treaty ratified by Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela [ACT] and focus on the legal mechanisms through which those two agreements establish cooperative international institutions for the governance of shared water resources. I am interested in exploring the role of legal instruments of the 2012 GLWQA that involve participatory mechanisms in the management of transboundary water resources and investigate their utility to improving the management of the Amazon.

Results

The idea that governance can be improved when responsibilities move not only upwards (involving a supranational authority), but also downwards (strengthening cooperation and consultation with subnational governments and non-state actors), has been proposed initially by scholars concerned with multilevel governance at the European Union. The incorporation of local knowledge is expected to improve the quality of governance decisions, to increase compliance and implementation of decisions on the ground, leading to more effective environmental governance.

This paper argues that while this new form of multilevel governance can be exemplified by the 2012 GLWQA, the agreement also shows some limits to the expected benefits of multilevel cooperation. On the one hand, despite finding a great variation with regards to the 2012 GLWQA and the ACT's objectives and governance structure, this work concludes that there are striking similarities with regards to enforcement. Both agreements make use of mostly "soft law" commitments and lack a meaningful enforcement mechanism to achieve the goals they have established. On the other hand, notwithstanding the institutional limits to enforcement, the multilevel participation mechanisms found in the 2012 GLWQA already resulted in some improvements in environmental governance in the region and can provide useful lessons for improving management of the Amazon Basin and beyond, specifically with regards to accountability and implementation of the agreements.

Conclusions

Beyond the Amazon River and the Great Lakes, the challenge of transboundary water management is an issue that is relevant for more than 260 river basins that are shared by two or more countries around the world. In terms of the importance of those resources for human needs, it is known that about "40 percent of the world's population lives within the basins of international rivers [...] and over 90 percent of the world's population lives within the countries that share these basins". International agreements increasingly have to be able to balance sovereignty and other national interests with environmental and sustainability concerns affecting the lives of many people. Managing those transnational waters and dealing with water security risks are among the most pressing challenges today.

While questions still remain regarding the ability of new instruments of transboundary cooperative management to overcome the apparent contradiction between economic development and environmental protection (that seems to separate the GLWQA and the ACT), the preliminary outcomes of participation mechanisms found in the 2012 GLWQA seem to indicate an improvement in water quality and management efficiency that can provide important lessons for advancing environmental governance.

*Doctoral candidate at Georgetown University Law Center

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