Margaret J. Vick, JSD
Affiliate: Utton Transboundary Resource Center, University of New Mexico School of Law
Associate: Global Center for Business and Development, Pacific McGeorge School of Law
Owner: Margaret J. Vick, PLC Attorney at Law
Margaret J. Vick, JSD
140 E. Rio Salado Pkwy #607
Tempe, AZ 85281
Phone: +1 602 814 7666
Fax: +1 866 712 1714
7. Global challenges for water governance, and
10 and 15. Water law at the national and international levels
Many of the global transboundary waters are governed by agreements drafted to address single or multiple management objectives: flood control, hydropower production, reliable irrigation supplies and volumetric allocation of the resources. These are complicated problems often addressed with engineering solutions. The agreements share costs, benefits and risks for predictable outcomes and for changes in circumstances anticipated at the time of negotiations.
Water management is changing in ways unanticipated at the time agreements were negotiated. The resource and the demands are constantly changing and are becoming increasingly complex. Can the complexities experienced today and the unknown complexities of tomorrow be addressed using yesterday's transboundary agreements? We do not have a choice and must find ways to do so.
Using the Water Diplomacy Framework this paper discusses the differences between viewing water management as a complicated problem with solutions and a complex network of interactions. Acknowledging the complexity and mapping the key nodes of water networks provide opportunities to manage the resource for multiple stakeholders and across different domains (natural, societal and political), scales (spatial, temporal, jurisdictional, knowledge) and levels (storm event to climate change, individual needs to transboundary management).
The Law of Treaties is codified in the Vienna Convention and is based on principles of sovereign equality to provide predictability and certainty. The International Court of Justice was presented with a conflict of certainty of agreement and the changing societal and political demands for the management of water resources in the Case concerning the Gabčikovo-Nagymaros Project (Hungary/Slovakia). The Court applied the law of treaties acknowledging changing circumstances but not at a level to overcome the certainty needed for global certainty under international law.
Application of methodology to a known case
The Gabčikovo-Nagymaros case, familiar to managers of international watercourses, is deconstructed using the Water Diplomacy Framework to demonstrate the complex networks and to identify the natural, societal and political domains involved in the case and the different scales and levels at which the management issues are viewed and addressed by the parties, the interest groups and the Court. This retrospective case study is used to explain the difficulties of managing a water resource within a framework of agreed upon requirements as the circumstances for using the resource are changing. The principles of the Law of Treaties used by the Court and other treaty principles that are most likely to be used to restrict management options to address changing circumstances on international watercourses are summarized.
Using the methodology to examine a current water management crisis
The final section of the paper presents a current case study for the Colorado River in the western United States. The Colorado River flows for 1400 miles through seven states in the United States with headwaters in the Rocky Mountains terminating in Mexico. It provides the domestic water supply for 40 million people, irrigation supply for over five million acres, hydropower throughout the western United States, recreational opportunities and wildlife habitat for seven National Wildlife Refuges, four national Recreation Areas, and 11 National Parks including Grand Canyon National Park.
The Colorado River is one of the most physically regulated in the world with an estimated four years system storage capacity. It is also one of the most legally regulated watercourses with complex layers of treaties, compacts, court decisions, statutes, regulations and policies. The first agreement for managing the River is the 1922 Compact among seven states in the basin and the United States. In 1922 it was estimated that the river system produced 15 to 17 million acre feet of water annually and this volume was divided between the Upper and Lower Basins. The 1944 Treaty between the United States and Mexico provides an additional 1.5 million acre feet to the most downstream reaches in Mexico. These apportionments are further divided among the seven states using volumetric allocations for the states in the Lower Basin and percentages for the states in the Upper Basin.
The Colorado River Basin is in a 15 year drought. The first multi-stakeholder basin-wide study examining supply and demand was completed in 2010. The Basin Study projected insufficient supply and storage to meet the demands within 25 years or by 2037. Current projections are for shortage of supply to meet all legal allocations and demand in the Lower Basin in 2016. The paper focuses on the Lower Basin and graphs the water networks within the natural, societal and political domains. It presents the scales and levels of participation currently used to analyze and manage the resource and the management changes under consideration. The author uses the Water Diplomacy Framework chart the complex networks, to identify gaps and to suggest process improvements for the current management approaches.
The Water Diplomacy Framework is a valuable tool to work within the laws that govern the sharing of transboundary water resources.
1. Islam, S. & Susskind, L.; Water Diplomacy: A Negotiated Approach to Managing Complex Water Networks (2013)
2. Case concerning the Gabcikovo-Nagymaros projec (Hungary/Slovakia), Judgment of 25 Sept. 1997, International Court of Justice
3. Vienna Convention on the Law of Treaties (1969)
4. Treaty relating to the Utilization of the Waters of the Colorado and Tijuana Rivers, and of the Rio Grande (Rio Bravo) from Fort Quitman, Texas, to the Gulf of Mexico, (United States/Mexico 1944)
5. Bureau of Reclamation, USA, Colorado River basin water supply and demand study (2010) available at: http://www.usbr.gov/lc/region/programs/crbstudy/finalreport/index.html
6. The Colorado River Compact of 1922, available at: http://www.usbr.gov/lc/region/pao/pdfiles/crcompct.pdf
7. Arizona v. California, 373 U.S. 546 (1963), 376 U.S. 340 (1964), 547 U.S. 150 (2006)