Trans-jurisdictional Water Law and Governance

Janice Gray, Cameron Holley, Rosemary Rayfuse

• Publisher: Routledge
• Year: 2016
• Topic: Law
• eBook ISBN:
  9781317401148
• Subtopic: Environmental Law
• Index: Law

Governance of global water resources presents one of the most confounding challenges in contemporary natural resource governance. With considerable government, citizen and financial donor attention devoted to a range of international, transnational and domestic laws and policies aimed at protecting, managing and sustainably using fresh and coastal marine water resources, this book proposes that sustainable water outcomes require a 'trans-jurisdictional' approach to water governance.

Focusing on the concept of trans-jurisdictional water governance the book diagnoses barriers and identifies pathways to coherent and coordinated institutional arrangements between and across different bodies of laws at local, national, regional and international levels. It includes case studies from the European Union, Australia, New Zealand, South Africa, the United States and Southeast Asia. Leading specialists offer insights into the pretence and the promise of trans-jurisdictional water governance and provide readers, including students, practitioners, policy-makers and academics, with a basis for better analysing, articulating and synthesising standards of good trans-jurisdictional water governance both in theory and in practice.

Part I
Introduction

1
The challenge of trans-jurisdictional water law and governance

Janice Gray, Cameron Holley and Rosemary Rayfuse

Introduction

It may be trite, but in a book about water governance it is useful to begin with the observation that water is critically important to human existence. Not only is it necessary to life itself, but as the United Nations World Water Development Report 2015 notes:

[W]ater is at the core of sustainable development. Water resources, and the range of services they provide, underpin poverty reduction, economic growth and environmental sustainability. From food and energy security to human and environmental health, water contributes to improvements in social well-being and inclusive growth, affecting the livelihoods of billions.

(WWAP, 2015, p. 2)

Yet, as Irina Bokova, Director-General of UNESCO puts it: ‘development also places considerable pressure on water resources – agriculture, energy and industry all have impacts on the use and governance of water’ (WWAP, 2015, pv).

Recognized since Roman times as a quintessential common resource, effective governance and management of water resources is central to avoiding the tragedy of overuse and depletion exemplified by Hardin’s notion of the ‘tragedy of the commons’ (Hardin, 1968). It can thus come as no surprise that throughout history a good deal of government, citizen and financial donor attention has been devoted to developing a plethora of international and national laws and policies aimed at protecting, managing and ensuring the sustainable use of fresh and coastal marine water resources. Water management approaches that have been adopted include market-based instruments, command and control regulation, integrated water resource planning, integrated coastal zone management, international conventions and agreements, as well as polycentric governance approaches (Pahl-Wostl et.al., 2013).

Nevertheless, despite decades, indeed centuries, of reforms, sustainable water management continues to be an elusive goal (NCCARF, 2012). Problems persist, such as pollution of terrestrial and coastal water resources from diffuse and cumulative sources, conflicts over shared water resources, and water scarcity (or allocation prioritization) as a result of increased demands from energy, agricultural, urban and cultural uses. Each of these problems involves a complex array of causes, conflicts and actors, often operating at different levels (local, state, national, regional, international), whose agendas are either not linked, are at cross-purposes, or are in conflict with one another (Folke, 2007). In short, the intractability of sustainable water governance arises largely from its ‘trans-jurisdictional’ nature, traversing as it does, physical, administrative, discipline, social and political boundaries at all levels. Achieving sustainable water governance thus requires a ‘trans-jurisdictional’ approach.

In this chapter we outline the concept of trans-jurisdictionality and its application in the context of water law and governance. We begin with a discussion of the concept of trans-jurisdictionality and then turn to a discussion of the challenges of such an approach in the context of sustainable water governance. The purpose of this discussion is to provide a framework for the examination of trans-jurisdictional water governance issues examined in subsequent chapters in this book and the conclusions that will be drawn in the final chapter.

The meaning of ‘trans-jurisdictionality’

It is perhaps easier to explain what ‘trans-jurisdictionality’ is not, rather than what it is. The term is most commonly used to refer to situations in which water physically crosses some sort of sub-national or national border such as where a river flows from or through the territory of opposite or adjacent states (see, e.g. Shi, 2007). In such cases, the characteristic actually being invoked is that of ‘trans-boundary’ rather than ‘trans-jurisdictional’. While it is true that trans-boundary issues are trans-jurisdictional in nature, our conception of trans-jurisdictionality is broader than trans-boundary, encompassing water problems that cross administrative – and even social – borders at all levels, not only across sovereign state boundaries. In this respect, the term trans-jurisdictional expressly acknowledges water’s disrespect for all human boundaries: borders between nation states, within nation states, between different bodies of law, between public agencies, between public, private and non-government stakeholders, borders across formal law and informal forms of social control, as well as interactions within and between fresh and saltwater commons. Trans-boundary issues are, therefore, merely a subset of trans-jurisdictional ones.

The trans-jurisdictional nature of water can be characterized along horizontal and vertical axes – the former requiring cooperation between actors at the same level to deal with cumulative impacts from multiple stressors and the latter requiring cooperation between actors at different levels. This characterization assists in delineating some of the key spaces in which legal, regulatory and governance tools need to be mobilized and applied if sustainable water outcomes are to be achieved and the seemingly intractable problem of effective water governance is to be overcome.

Thus, the term ‘trans-jurisdictional water governance’ is used here to refer to legal and policy arrangements for the conservation, management and use of water resources that cross either functional or geographic administrative borders and either seek to reinforce human-imposed borders, divisions and boundaries or seek to achieve coherence and institutional coordination both between and across different bodies of laws at the local, national, regional and international levels. ‘Water governance’, for these purposes, is intended simply to refer to ‘the intentional shaping of the flow of events’ so as to realize desired water outcomes (Parker and Braithwaite, 2003 p. 119; Conca, 2006), as distinct from the concept of ‘government’ which is defined as a political authority/state auspice (Holley et al., 2012; Norman et al., 2015 p. 3). Our particular concern with ‘trans-jurisdictional water governance’ accordingly focuses on legal and policy responses to water resources that cross administrative borders, and seek to achieve coherence, institutional coordination and harmony between different bodies of laws at international, regional, national or local levels; between different government and non-government auspices; and between water law and other areas of law (e.g. climate change, biodiversity and land regimes, and/ or the law pertaining to the energy and food sectors) (Moynihan, 2014).

Admittedly, this broad concept of trans-jurisdictional water governance may gloss over some theoretical and practical differences between international, national and local tiers. With these limitations in mind, and paying careful consideration to these differences, this book therefore merely utilizes the term ‘trans-jurisdictional’ as a means of orienting water governance scholars around a structured, albeit limited, understanding and conceptual framework (Holley et al., 2012). The limitations of the framework undoubtedly invite digression and alternative formulations or definitions (as we explore below by developing tentative typologies of trans-jurisdictional water governance). Nevertheless, it is hoped that this framework will enable comparative lessons and insights to be drawn across international, national, regional and local efforts as to the ways in which trans-jurisdictional water resources might be more effectively, efficiently and legitimately governed.

The challenge of trans-jurisdictional water governance

The concept of trans-jurisdictionality introduces complex, multi-dimensional, multi-scalar problems which require complex solutions (Norman et al., 2015). Thus, achieving effective, efficient and legitimate trans-jurisdictional water governance remains a significant challenge at and between the international, regional, national and local level. This section provides an overview of these challenges.

Challenges at the international level

Internationally, state sovereignty remains a fundamental governance challenge for numerous water resources, including approximately 250 trans-boundary river basins, 200 trans-boundary aquifers, various trans-boundary lakes and the oceans, often hindering the development of cooperative forms of governance which engage with, and accommodate the impacts of, decisions in one state on another (Gupta, 2013). This remains the position despite the continual refinement of water rules and practice (see, e.g. the Helsinki Rules, 1966; Berlin Rules, 2004; Convention on the Law of Non-Navigational Uses of International Watercourses; ILC Articles on Transboudary Aquifers, 2008; and other related regional conventions/agreements such as the UNECE Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes) which has sought to ensure the equitable use of international watercourses and their waters to deliver better protection, preservation and management.

Scholars have explored a number of concepts aimed at addressing these challenges including, for example, cooperative sovereignty (Moynihan, 2014), Integrated Water Resources Management (IWRM) (Zeitoun, 2013), and regional cooperation models and agreements (see Eckstein, 2002; Salman, 2007; McIntyre, 2007, 2010; Biswas, 2004; Lim, 2014; Moynihan, 2014) in order to identify the elements necessary to achieve successful trans-jurisdictional water governance. The elements identified have included the need for ‘shared visions’ among relevant organizations and communities, the importance of ‘communities of interests’, notions of ‘shared sovereignty’ and ‘boundary spanning’ (Bressers and Lulofs, 2010), as well as early and strong engagement of stakeholders, local capacity building and policy development (Servos et al., 2013). Nevertheless, unresolved issues remain. For example, criticisms of IWRM are prolific and conflicts between upper and lower riparian states remain common, fed by geopolitical stakes, a privileging of efficiency and securitization, the dominance of ‘basin hegemons’, and the evasion of politics and political realities (Zeitoun, 2013). Expanding pressure on international water governance from competing uses and users of water has also seen a host of new actors (such as those in the energy sectors) shaping international water management, including the injection of new ideas on ‘horizontal alignment’, ‘nexus’ management and more pluralistic basin governance (Zeitoun, 2013).

Clearly, specific institutional architectures remain necessary for the achievement of collaborative solutions to common problems in trans-boundary and trans-jurisdictional water management, particularly when questions of human rights, indigenous rights and climate change are added to the equation.

In the human rights context, for example, the increasing intersection of international water law and international human rights law has opened up new points of interaction with international water management. The UN Committee on Economic, Social and Cultural Rights’ General Comment No. 15 on the Right to Water (UNCESCR, 2002) paved the way for the UN General Assembly to adopt a declaration on the Human Right to Water and Sanitation (United Nations General Assembly, 2010) and the UN Human Rights Council resolution on the human right to access safe drinking water and sanitation (United Nations Human Rights Council, 2010), providing strong political recognition to these rights and creating enforceable responsibilities that can empower the vulnerable, including indigenous peoples (see, e.g. United Nations Declaration on the Rights of Indigenous Peoples (United Nations General Assembly, 2007). Furthermore, progress in the field of water and sanitation supply and management was influenced by the Millennium Development Goals which sought to ‘halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation’ (UN, 2002). While the goal was largely met, in 2015 some 2.5 billion people in developing countries still face physical or economic water shortage (UNDP, 2015). These statistics suggest that much work remains to be done to understand and address the interaction and coordination of human rights regimes and other areas of water law. This includes managing trade-offs between rights and other water interests (such as the environment), as well as coordinating implementation and developing win-win solutions (Gupta, 2013; Pahl-Wolst et al., 2013; Hearns et al., 2014).

Similarly, despite studies of indigenous engagement in water governance (Von der Porten and de Loe, 2013), there are numerous gaps and unresolved issues including how best to acknowledge and address real-world Indigenous goals related to self-determination and nationhood in different contexts (Von der Porten and de Loe, 2013).

The influence of climate change is also expected to compound the trans-jurisdictional governance challenges in the coming decades, requiring more adaptive and cooperative approaches that tap into local knowledge and can deal with water quality and availability concerns (Zeitoun, 2013). In short, the challenge of trans-boundary and trans-jurisdictional water governance at the international level remains a significant one (Gupta, 2013; Tujchneider et al., 2013; Hearns et al., 2014).

Challenges at the regional level

At the regional level, the European Union has been a prominent innovator, developing mechanisms that encourage cooperation between nation states and civil society under its Water Framework Directive and the Marine Strategy Framework Directive (Trubeck and Trubeck, 2006; Keessen et al., 2008). Nevertheless, while many European Union states have delivered on these efforts, a number of studies have highlighted the ongoing challenges of engaging non-government actors and moving beyond planning to implementation. In essence, these studies raise more questions than answers (Pahl Wostl et al., 2010), demonstrating how regional level obstacles still pose significant challenges for the realization of trans-jurisdictional governance.

Challenges at the national level

Similarly at the national level, federal systems, in particular, confront numerous problems facilitating cooperation and power sharing across subnational borders. Identifying successful institutional designs and harmonizing legal and policy responses between agency ‘silos’, across local political boundaries and between multiple public and private stakeholders are ongoing challenges. Certainly, concepts such as sustainable development, IRWM, integrated coastal zone management and similar integrated planning approaches have come to represent dominant policy narratives. However, many (if not all) of these approaches continue to come under strong criticism from schola...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Preface
• Part 1 Introduction
• Part 2 Trans–jurisdictional water law governance: theoretical underpinnings and international approaches
• Part 3 Trans–jurisdictional water law and governance: national approaches
• Part 4 Emerging challenges in trans–jurisdictional water law and governance
• Part 5 Conclusion
• Index