Legal
Have you ever asked yourself what water is? It is a silly question for our daily life, but it is one of the most complex problems to politicians, policy makers, lawyers, environmentalists et al to discuss.
The dictionary definition is that water as “a clear, colourless, odourless, and tasteless liquid, H2O, essential for most plant and animal life”. When described like this, it doesn’t seem complicated but there are many other issues which come along when settling water matters on the borders of different countries or even within single territories.
“One difficult issue is that the law varies depending on the place where the water is”, says the journalist Adel Darwish. “If we are talking about the water in the sea it can have a completely different legislation than if it was on a lake, and even more than environmental laws”, he says.
Internationally, there are different fields of research. Under the international law of water resources, the discussion is about sovereign states. “It can be about the Mekong river, for example”, according to Patricia Wouters, Director of the International Water Law Research Institute and lecturer at University of Dundee. But when it comes to matters involving third parties, like a private multi-national water company managing water in Bolivia, for example, we talk about trans-national water.
Domestically, the secondary water law is on a national level. When it is to do with what you do within domestic borders you can look to the water law within a country, and it is very much to do with what the state does with its water resources.
Other than the difficulty of deciding which sphere in which to discuss the laws, there are other forthcoming problems. “If you’re talking about transboundary water, there is an international law that governs everybody”, says Mrs Wouters.
“Sometimes it is changed under treaty, but most treaties do not, under customary international law. The rule is: every water course state is entitled to an equitable and reasonable use of their shared resources”, she says. “But the question becomes: what is reasonable in each case?”
Reasonable share of water
As the issue is relatively ‘young’ (one of the first global conferences about the question, Mar del Plata Action Plan, was held in 1977), there is a lack of references and universally accepted established concepts. So, when problems arise, no one knows which is the right path.
Mrs Wouters reckons that, despite the difficulties in deciding what a ‘reasonable’ share of water constitutes, the definition is the best achieved so far. “I am convinced that it is still the best rule of law, because it permits each state and down to the user level to determine what their needs are”, she says. “So, we look at each relevant factor and decide. You say: ‘this is the water we have. What would be reasonable use given this water and these needs?”
Yes, it may be the best one as Mrs Wouters says, but it is still incredibly prone to disagreements, as she admits herself. “Deciding what is reasonable can be a tough task”, she says. “Who gets what? Can existing users be changed to accommodate new users? Can Egyptian users of the Nile change to accommodate new users from Ethiopia?”
Inequality
The Dundee University lecturer also points to the inequality of the states as a delicate issue. International law says that states should be considered equally, but some are more equal than others. The Israeli refusal to give enough water to the Palestinian territories is a good example of how strength can influence some rights.
Finally, there is controversy around the economical use of the water and the concepts derived from it. Economists see water as any other asset, so the access to it should follow usual market forces of supply and demand. “It is where we [the lawyers] argue with them. Market value is not everything. There are some values that cannot be driven by market”, concludes Mrs Wouters.
If economists are right, how can we deal with the ‘universal right’ to water? Actually, article 25 of the Universal Declaration of Human Rights says that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing…”, but does not mention water – which is clearly implicit, but not written.
One of the legal challenges to overcome is how to ensure that every person can be assured of receiving a fair amount of water to fulfil article 25, achieving a “standard of living adequate for the health and well-being”. There seems to be an endless amount of work to be done, as a useful definition is still to be made. But the guidelines are not difficult to see. “Unless people know who should get what, when and why, you have nothing. Our work is basically to assure that the voices of the weakest will be heard and protected”, says Mrs Wouters. It couldn’t be clearer.
