Category Archives: Conferences

Groundwater Governance Workshop in Uruguay

I have just returned from a fantastic week in Uruguay for a workshop on “Groundwater Governance: Drawing Connections between Science, Knowledge and Policy-Making” organised by the Strathclyde Centre of Environmental Law and Governance(SCELG) and CEREGAS (Centro Regional para la Gestion de Aguas Subterraneas en America Latina y el Caribe), and funded by the British Council and its Researcher Links Programme.

The workshop took place in Salto, in the North-Western part of Uruguay, on the border with Argentina, and was attended by 28 researchers, 14 from UK based institutions and 14 from Uruguay. The most valuable thing I took away from the week was the amount I learnt from the other participants, all from different countries, backgrounds and disciplines. The ability to learn about groundwater governance from hydrogeologists, lawyers, anthropologists, social and political scientists, engineers, and economists, who were all in the same room discussing the same problems, was a rare privilege. The humbleness and willingness to share knowledge by all participants set this workshop apart.

Throughout the week, the workshop built on the results of the 2011-2014 Groundwater Governance Project (a joint initiative of UNESCO-IHP, FAO, GEF, the World Bank and the IAH), which produced a Global Diagnostic, a  Shared Global Vision for 2030 and a Global Framework of Action. A SCELG/CEREGAS Working Paper with contributions from all of the participants was an immediate output of the workshop, launched on World Water Day 2016: click here to access.

Director of SCELG, Francesco Sindico, wrote this piece summarising the workshop.

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Group picture by the Central Hidroeléctrica Binacional de Salto Grande just north of Salto and Concordia.

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We were asked to work in groups and then present throughout the workshop.

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The final session of the workshop took place in Montevideo at the MERCOSUR headquarters building. In the picture from left to right: Francesco Sindico (University of Strathclyde), Zelmira May (UNESCO), Jorge Rucks (CEREGAS), Lidia Brito (UNESCO) and Graham Stanley (British Council).

The Eighth International Workshop on Hydro-Hegemony: Law & Hydro-Hegemony

The Eighth International Workshop on Hydro-Hegemony: Law & Hydro-Hegemony took place in London on 24-25 October 2015, and I was extremely privileged in being able to co-organise the event with two other fantastic co-chairs.

The weekend took a participatory format, and explored thoughts presented in the workshop’s concept paper. Discussions revolved around key questions, as well as simulations for three ‘threads’ of relevance for hegemony and international law: aquifer resource distribution, virtual water and human rights. My reflections here do not address these three topics, but instead looks at the role of international law in hydro-hegemony theory, and the development of hegemony theory generally.

A History of Hydro-Hegemony Theory

The workshop follows a legacy difficult to follow, which started in 2005 when Mark Zeitoun from King’s College London presented his theory of hydro-hegemony, which led to a paper by Zeitoun and Warner in 2006“Hydro-hegemony – a framework for analysis of trans-boundary water conflict”. Building upon Gramsci’s (1935) conception of ideological hegemony as a combination of force and consent, that is, compliance with ‘the way things are’ (Lustick 2002), hydro-hegemony theory observes the role of power in transboundary water interaction (TBWI) (state relations over shared water resources). The ‘pillars’ of hydro-hegemony were identified as riparian position, exploitation potential, and  the three ‘faces’ of power based on Lukes’ (2005 [1974]) categorisation of power as material (hard) power, bargaining (soft) power and ideational (soft) power. Hard power can be classified as material and based on force, whereas soft power is immaterial and relies on persuasion (Zeitoun et al. 2011: 161).

The following hydro-hegemony workshops further developed the Framework of Hydro-Hegemony, gradually placing less emphasis on riparian position and exploitation potential, and more emphasis on the three faces of power. Thus, in answer to the political question ‘who gets how much water, how and why?’, the hydro-hegemony framework typically holds that this is determined by the most powerful actor. By primarily focusing on interstate relationships, the Hydro-hegemony framework has been traditionally state-centric; a primary criticism of the theory (Lopes 2012; Warner and Zawahri 2012).

The last four workshops have broadened the theme from specifically developing the Framework of Hydro-Hegemony, to focusing on the discourse of “Water Security” in 2010, “Transboundary Water Justice” in 2013 and exploration of “Contesting Hegemony” in 2014.  One theme persistently present but never fully explored is the role of international law in hydro-hegemonic arrangements. Debates from previous workshops consequently gave rise to this year’s theme: “International Law and Hydro-Hegemony”.

International Law and Hydro-Hegemony

Leading up to the workshop, I contributed to – along with co-authors Becca Farnum and Mia Tamarin – the concept paper that would set the tone for the weekend: “The Role of International Law in Hydro-Hegemonic Arrangements”.

International law is often considered in hydro-hegemony literature (see Woodhouse and Zeitoun 2008; Daoudy 2008; Zeitoun et al. 2011), however it is primarily discussed as a tool or strategy in countering hegemony, ignoring its active role in solidifying hegemonic arrangements. The place of international law in hydro-hegemony theory is thus yet to be fully conceptualised, leading us to the key aim of the paper: to begin to conceptualise the role of international law in both hegemonic and counter-hegemonic relations over water. Our discussions resulted in the following, preliminary figure, to help understand the (counter)hegemonic dimensions of international law:

Figure

A Conceptualisation of International Law and its Role in (Counter-)HydroHegemony

In this figure, we understand international law as soft power, which manifests in different dimensions of the international legal regime. We distinguish these dimensions as the content and structure of international law, which embodies bargaining power and ideational power respectively.

As a repository and creator of ideas, it is a tool and actor in ideational power; as an author of international ‘rules’, it is a tool and actor in bargaining power. As such, international law wields significant soft power – and thus influences hydro-hegemonic relations – even when it does not carry with it a strong global police force with hard power (Daoudy 2008).

The content (principles and provisions) within specific bodies of international law through treaties and custom are represented by the arrows, pushing down on either side of the ‘international playing field,’ and can thus be leveraged to level or unbalance the playing field accordingly.  In the concept paper, we recall bargaining power as

the ability to control the “rules of the game” (Zeitoun and Warner 2006: 442), influencing the agenda, and determining what is and is not on the negotiating table. Appeals to international law are a component of this second dimension of power, and is often used to legitimise state practice (Dellapenna 2003). So, too, is the ability to create, write, and influence international law. This power is held by academics and lawyers in the drafting of articles; activists, corporations, and civil society leaders in their campaigns, and States themselves through their participation in the UN General Assembly and Security Council.

Thus, the figure indicates that the availability of certain provisions within the authority of international law can provide states with the legal arguments to achieve their interests, whilst other provisions may work against these interests. The figure, perhaps erroneously (see below), suggests that there is a binary between certain principles that can be leveraged for hegemonic versus counter-hegemonic purposes.

In contrast, we suggest that the structure of international law (represented by the thick border around the figure) manifests as ideational power, which the concept paper summarises as

the capacity to create, uphold, and destroy narratives, perceptions, and knowledge (rooted in Foucault’s (1980) understanding that power is inseparable from knowledge). International law reflects and reproduces global discourses on issues, which influence domestic debate and policy-making (Cortell and Davis 1996). It shapes and perpetuates norms of behaviour.

Notably, ideational power is immensely powerful in its ability to procure consent. In the Gramscian sense, this consent is “secured by the diffusion and popularization of the world view of the ruling class” (Bates 1975: 352). We identify the parameters and structure of international law as  defined through its requirement for territorial sovereignty and assumptions of equality; that is, the de jure notion of sovereign equality versus the de facto politico-economic hierarchy of states. Accordingly, “buying in” to the rules of the game, through the acceptance of and engagement with international law, is to consent to the hegemony of the Westphalian imperialist system. We discuss an expression of this ideational power through the ‘sovereignty paradox,’ whereby the structure of international law forces non-hegemons to engage in sovereignty arguments in defence of hegemonic domination., which in turn upholds and reinforces the very structures that enable its existence as a governing concept:

With the nation-state as the supreme actor in international legal relations, it is sovereignty which gives states the ‘legal personality’ necessary to engage with international law and make agreements with other sovereign states (Crawford 2012). Fundamentally, its purpose is to ensure States’ independence from the interference of foreign powers and ensure States’ exclusive jurisdiction and supremacy over its own territory (Steinberger 2000). … 
Thus it has been a post-colonialist trend for developing states to reassert their sovereignty, in particular their sovereignty over natural resources, in an effort to assert their independence through self-determination (Majinge 2008; Pahuja 2013). ….
Furthermore, the claim to sovereignty puts developing states on an equal legal footing next to even the most powerful nations, since international law is underpinned by the notion of “sovereign equality” (UN Charter, Article 2).
Consequently, while authoritarian behaviour has been traditionally backed by sovereignty (Cannady and Kubicek 2014), a ‘sovereignty paradox’ ensues while it is simultaneously asserted as a counterhegemonic strategy against authoritarian behaviour. These issues are challenged both legally and normatively as many ‘peoples’ do not have their own contemporary nation-state, and the concept of sovereignty is increasingly used for both hegemonic and counter-hegemonic leverage between and across a variety of actors.

This concept paper and the resulting figure is our first attempt to understand the —role of international law in countering or reinforcing structures of hegemony. We held in the paper that the current hegemonic structures of international law is upheld though ideational power, while the tools within international law can be used to leverage more immediate aims through bargaining power. This led us to ultimate question for the Eighth Workshop on Hydro-hegemony: can the tools contained within international law be used in a way that can pierce, reshape, or dismantle its hegemonic structures, in order to move toward a more just and equitable system?

HH8: Reevaluating our Understanding

We used the ideas and the figure presented in the paper as a basis for discussion during the Eighth workshop on hydro-hegemony. Whilst previous workshops had the tendency to adopt a conference style arrangement, the Eighth workshop sought to shake up the structure with a participatory format in order to generate new ideas from new faces. The result forced a severely critical look at where understandings of hydro-hegemony theory currently are, strongly suggesting a reevaluation of our preconceptions, and ideas presented in the concept paper.

  • Why are we still stuck on State-centric conceptions of hegemony?

Hydro-hegemony theory from the outset has been criticised for its state-centric outlook, relying upon ‘Realism’ within international relations theory. This perspective assumes that States are the most important actors in an anarchic international system, and in general strive to pursue self-interest. The influence and power of non-state actors across various domains and governance scales has since been recognised (see Warner and Zawahri 2012 outlining the soft power of non-state actors such as NGOs, epistemic communities, and policy entrepreneurs). Yet, it is an issue lacking consideration in this year’s workshop and concept paper, compounded by the theme of international law, which has its own issues with state-centricism.

As outlined in the concept paper (see Section 2.2.5.), international law is underpinned by the Westphalian concept of sovereignty in which nation-states are the supreme actor. On a conceptual level, it neatly fits in with the hydro-hegemony framework as an instrument of soft power that can be used by states in their interactions over water. However, when talking about the the reality of power and influence in transboundary water governance, the theoretical ‘legal personality’ of actors under the strict scope of international law is hardly relevant. As discussions in the workshop highlighted, the state-centric discourse surrounding international law merely exacerbates the hegemonic idea that international law is a framework of social organisation held exclusively for the participation of states (see D’Souza 2002). That is, to continue arguing that non-state actors can’t use international law both reinforces the parameters of international law (which should be recognised is not static but constantly evolving as a product of society), and also fails to recognise the power of non-state actors (from those who are marginalised to those with huge voices, such as multinationals).

The world is moving beyond nation-states as the supreme actor in global affairs, and theory is not necessarily catching up to try and understand this. This in turn dooms international law to its current state which is arguably becoming increasingly irrelevant in dealing with today’s issues. The role of non-state actors in the international legal system is recognised (see d’Aspremont 2011), and should accordingly be integrated into multi-scalar discussions of hydro-hegemony.

  • Are we limiting ourselves with negative connotations of hegemony?

A critical point was made by Clemens Messerschmid in the opening plenary of Day 2: why do we look at hegemony as always being a negative arrangement?

The point is important, especially if we are to explore the notion of ‘counter-hegemony’ seriously. The Gramscian understanding of hegemony was not thought of as intrinsically negative. In fact, Gramsci built on the theory to counter the Italian Fascist regime of the time, holding that hegemony itself could be cultivated to break the dominant, oppressive hegemony. That is, breaking the consent (values of the dominant class seen as ‘common sense’ by all classes) of the oppressed would break the ‘negative’ hegemony. In turn, that consent (the construction of alternative common sense, through coercion) could be transformed into a ‘different’ hegemony, but expressed in a more positive state of affairs. In this sense, hegemony is understood as the method behind which social order is maintained, not the substance of that social order.

Based on this, is the use of the term ‘counter-hegemony’ confusing? Counter-hegemony (a proactive endeavour seeking transformation) has been distinguished from resistance (reactive, non-strategic action). Thus, the term implies overturning a current hegemonic order, rather than just pushing against or challenging it. Whilst a strategic process of counter-hegemony would involve creating an alternative replacement, there is little theoretical consideration of what this would look like in the hydro-hegemony literature (with the exception of Cascão 2008, 2009). If hegemony is a theory behind what maintains social order, does counter-hegemony imply that anarchy is its replacement? Does it mean ‘levelling the playing field’ by reconfiguring power dynamics, or would it be quantified by equitable, distributive outcomes? Or, is counter-hegemony simply adopted to replace hegemony with another hegemony sought by those pursuing it? Accordingly, is counter-hegemony always desired? (See Zeitoun et al. 2014

The workshop highlighted this confusion, with counter-hegemony used interchangeably with resistance, and little input to the overarching question: so the international legal system is hegemonic – so what? What replaces it? How? There certainly needs to be more clarity and common understanding, and the use of complicated theoretical concepts that remain almost entirely within the academic sphere is at least partially to blame.

But more importantly, Clemens’ reflection highlighted a pertinent issue: hydro-hegemony itself is too often used as a moral measure of ‘good’ and ‘bad’ outcomes. Surely it is instead a useful tool that can be used to deconstruct and understand hydropolitics to a deeper level. The moral evaluation is something that should perhaps come afterwards, framed by a different, more relevant theory (such as ‘justice’?).

  • Are we losing sight of the meaning of hegemony, by using it as a synonym for power? 

A key outcome of the workshop in response to the Figure presented in the concept paper was the way in which it presents the bargaining power aspect of hegemony as binary forces pushing against each other. This is an important observation of the image’s message, since it lead to the assumption that (a) hegemony is equal to power asymmetry, and (b) a level playing-field is the ultimate aspiration.

(a) Hegemony = Power?
The point that hegemony is often used synonymously with power asymmetry is critical. The misunderstanding erodes the meaning of hegemony as an order that has been established through force and consent. Power is a vital component of this, but it is not hegemony’s defining aspect. Figures 1 and 2 show the original and revised conceptions of hydrohegemony as being held up by ‘pillars’ of both power (material, bargaining and ideation) as well as context (riparian position and exploitation potential).

As with these Figures, the Figure presented in this year’s concept paper represents bargaining power as a component of hegemony along with ideational power embedded the structures of international law. It is thus intended to represent the elements that amount to hegemony as a whole, rather than those component parts representing hegemony in themselves (making hegemony synonymous with power). However, the confusion makes a valuable point about what the image is trying to communicate. How is the context represented in our new figure?
HHFramework (b) The level playing-field assumption
Having the bargaining power of legal provisions pushing at two ends of a ‘balance’ is problematic. Whilst it obviously, visually restricts consideration of more than two actors in TBWI, the workshop discussions highlighted two key points. Firstly, representing bargaining power in this way assumes that there are inherently ‘hegemonic’ and ‘counter-hegemonic’ legal provisions that can be leveraged. This idea was rejected, with more agreement that the provisions’ use has more influence than the nature of the principles themselves. Again, the binary suggests a dichotomy between ‘good’ and ‘bad’ hegemony, whilst also suggesting that power=hegemony.

re-imaging hh8

Suggestion by Mark Zeitoun that the use of a balancing scale assumes equality, and that the structure of international law / realities of structural inequality should be visualised in the “playing field” itself

Secondly, the ‘balance’ itself infers an assumption of structural equality between actors. Despite the assumption of equality being a central observation in the paper as contributing to the hegemonic structure of international law, a ‘balance’ with a central ‘pivot’ allows power to be utilised by either actor equally in order to shape the outcome. Consequently, the Figure does not consider the geographic and political context that are represented in Figures 1 and 2 above.

Finally, it was questioned as to whether a ‘level playing-field’ is the ultimate aspiration as suggested by the Figure, and whether hydro-hegemony theory even prescribes aspirations at all. It goes beyond trying to understand the role of law in hydro-hegemony, and reinforces the state-centric claim-counter-claim culture of international law, which is just one aspect of its complex dimensions. The representation of a ‘balance’ is intended to be descriptive of the claim made by international law (that states are formal equals). The figure tests that claim and is thus useful for analysis. That the ‘balance’ is taken to be presumptive and leading is something that needs more thought by us, the authors, in our communication of the conceptual image and the purpose it serves.

  • Is international law really only concerned with ideational and bargaining (soft) power?

Another recurring theme throughout the workshop was the influence and impact of resources in the successful use of international law, and its impact on hydro-hegemonic relations. In other words, weaker states are vulnerable to the dominant administrative advantage of states with abundant resources, including good lawyers who can utilise the law more effectively. Owen McIntyre specifically stressed that the easiest remedy the ‘international community’ can provide to ‘level the playing-field’ is to provide funding for independent technical experts to support negotiations, rather than re-writing laws. This observation reveals that it is perhaps false to assume that international law is only concerned with bargaining and ideational (soft) power, as we suggest in the concept paper. The role of resources as a contextual hard power element should therefore be given much more consideration.

HH IL Framework

Suggestion that resources (economic, legal and administrative capacity) influence the balancing of the “playing field” through material (hard) power

Thanks to Mark Zeitoun and Mia Tamarin for their helpful comments on this post.

HH8: Outputs

  • The Workshop Proceedings for HH8 will be distributed by the end of November 2015.
  • The concept paper is the basis for several upcoming publications. We therefore welcome comments while it is in its draft form (send to info@lwrg.org).
  • Visit the Workshop’s webpage for more information and up to date outputs.

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With co-organisers Becca Farnum and Mia Tamarin

LWRG

Conference Presentation: IAH 42nd International Congress

In some attempt to understand the science behind the subject matter I’m studying, I attended the International Association of Hydrogeologists International Congress in Rome this September. Amongst the plethora of technical ‘hard science’ presentations, I apologised to an audience – solely constituting hydrogeologists – of the comparatively ‘soft’ presentation I was about to give, not just on law and governance but  the hugely elusive concept of environmental justice.

My oral presentation, ‘Is Justice Blind to Hidden Water? Transboundary aquifer governance: a challenge for environmental justice,’ explored the concept of environmental justice as a tool that can be operationalised in order to identify structures of injustice, which can inform policy-makers of asymmetries between groups.

My poster presentation, ‘Do Oil and Water Mix? The need for a coherent law of transboundary aquifers,’ compared the different international legal regimes governing the constituent parts of transboundary aquifers and oil and gas reserves in order to establish lessons for the future development of international law governing transboundary aquifers.

The Challenges for Transboundary Aquifer Law and Governance: Reflections from the XV World Water Congress

Cross-posted from the London Water Research Group website

Water law on both the national and international levels featured as a prominent theme in the XV World Water Congress in Edinburgh this year (25-29 May 2015), with 20 parallel and special sessions combined dedicated to the legal sub-theme. The week also gave significant attention to transboundary groundwater (water stored underground shared between two or more states) and aquifers (geological formations that have the capability of storing water). An entire parallel session focused on ‘Law and governance for managing groundwater resources’, and a special session looked at ‘The (transboundary) groundwater resources of Africa’. The trend for discussing the challenges and implications of governance over transboundary aquifers is repositioning the subject within international water law from the ‘too difficult’ box, into a popular research question.[1]

The focus on transboundary aquifers could not be more timely, with the General Assembly due to decide the fate of the UN International Law Commissions’ Draft Articles on the Law of Transboundary Aquifers[2] in 2016,[3] following repeated postponing.[4] The Draft Articles represent arguably the most authoritative international legal instrument that specifically addresses the governance of aquifers,[5] although they merely constitute recommendations for best practice rather than ratified legally binding obligations, and the value of their current content has been seriously challenged.[6] Legally binding treaty arrangements between states over aquifers are almost negligible.[7] This is surprising when considering the amount of transboundary aquifers that exist in relation to surface water bodies.[8]

After years of neglecting transboundary aquifer governance as a subject, it is finally starting to become a topic that can no longer be ignored. It is estimated that 96% of all freshwater is stored underground,[9] and as climate change becomes a growing concern affecting the availability of surface water, groundwater and aquifers are increasingly considered an important part of climate change adaptation.[10] It is also becoming imperative to ensure that there is adequate regulation over transboundary aquifers, as their integrity and surrounding ecosystems are threatened by over exploitation,[11] land-use changes[12] and pollution.[13] So what were the conclusions from the World Water Congress regarding transboundary groundwater and aquifer governance, and what should the next steps be?

 

The Knowledge Deficit

The most prominent challenge for transboundary aquifer governance that stood out was a severe knowledge deficit regarding what is known about these diverse hydrogeological systems. This is not to say that there haven’t been rapid advances in knowledge in the last decade. The International Groundwater Resources Assessment Centre (IGRAC) has been mapping the Transboundary Aquifers of the World in its Global Groundwater Assessment since 2009 where it identified 380 transboundary aquifers. This number has since grown, from 455 in 2012 to now 592 in 2015. Presentations at the World Water Congress revealed further studies fleshing out these assessments. Andrew Ross from UNESCO-IHP outlined case study from the Groundwater Resources Governance in Transboundary Aquifers (GGRETA) project,[14] which aims to conduct in-depth assessments of the physical and socioeconomics characteristics of three selected case studies. Geert-Jan Nijsten from IGRAC gave a presentation on the groundwater component of the GEF funded Transboundary Waters Assessment Programme – TWAP, which is currently collecting data on 199 transboundary aquifers in order to characterize their hydrogeological, socio-economical, environmental and governance dimensions.[15] He noted how the project allows identification of important hotspots, providing focus for future work. These projects and the information collected are significant, as activities and context surrounding an aquifer affects the importance of that aquifer, and accordingly, the nature of state cooperation for its governance.

These projects represent significant progress since many states are unaware they even share an aquifer, let alone have considered cooperation with their neighbours. As one state’s use of an aquifer can have negative implications for the use by another state, being aware of underlying aquifers is important for future use and future generations, even if the resource is not currently being utilized. Despite these research advancements, a knowledge deficit still exists, and this data collection is by no means complete. Over the last four assessments by IGRAC, visible changes of the aquifer boundaries can be observed (Figure 1).

TBA maps compared

Figure 1: IGRAC Transboundary Aquifers of the World 2009 map compared with 2015 map.

The changes in mapping over time are explained by the data collection methods used for the IGRAC project: asking states for information on their aquifers via surveys. Fundamental differences in methodologies and technologies in data gathering produces a body of inconsistent information. This problem was visibly illustrated in a presentation by Rosario Sanchez, which summarized a study identifying transboundary aquifers along the Mexico-US border.[16] Notably, the difference in information provided by states created doubt over aquifer boundaries, as well as the amount of aquifers shared by the two states. This was primarily due to differences in data collection and methodologies between the two countries, and a lack of accepted definition of the transboundary nature of an aquifer. Conclusions in the World Water Congress sessions stressed that the obvious next step is to reduce the knowledge deficit, and understand what exactly is being governed before rules can be put in place to govern them.

 

Knowledge, Power and Politics

Relying on states to provide information regarding their resources highlights another major challenge regarding scientific uncertainty: politics. Many sessions during the World Water Congress addressed the relationship between science and law, and the dynamics of power and politics that underlie both disciplines. In one such session, Stephen McCaffrey from the University of the Pacific addressed the influence of science on international water law development and implementation, noting that the implementation committee for the UNECE Water Convention[17] mainly consists of scientists, with only a few lawyers. This is good news for ensuring that the function and characteristics of the resource being governed by the legal rules is understood. However, this situation cannot be separated from the political nature of contested scientific expertise, and the politics and power inherent in knowledge construction. Naho Mirumachi from King’s College London pointed out that knowledge does not just consist of scientific data, but also traditional and local knowledge, and that information used for governance is a political decision, which puts value on different types of knowledge. Such considerations highlight that ‘reducing the knowledge deficit’ represents yet a further challenge, rather than a next step towards governance solutions.

 

Legal solutions for uncertainty?

In a world where there is contested expertise, where the accepted knowledge is likely the result of power and politics, and where data is both limited and constantly changing, is it preferable to make data collection a priority before legal rules can be put in place?

Legal rules for uncertainty exist. The UN ILC’s Draft Articles require a precautionary approach in the prevention, reduction and control of pollution, ‘in view of uncertainty about the nature and extent of a transboundary aquifer or aquifer system and of its vulnerability to pollution.’[18] The obligation to notify, consult, and conduct a transboundary Environmental Impact Assessment is triggered merely when a planned activity ‘may’ have a transboundary affect,[19] whilst exchange of data and information requirements aim to close the uncertainty gap.[20] Despite this, there needs to be further study to identify the best governance frameworks and legal rules for the uniquely uncertain case of transboundary aquifers, for which, in many cases the boundaries of what is governed are not defined, and where there may never be true scientific certainty. It is true that groundwater governance is complex and needs to be tailored to local conditions, and knowing the location and characteristics of an aquifer is an obvious prerequisite for governance. But in terms of the applicability of legal rules in these circumstances, is the vague and inclusive precautionary principle enough to guide practical implementation? Do the requirements for information exchange appreciate the power dynamics in knowledge construction? Whilst interdisciplinary collaborations continue to be integral to this topic, these are the imminent questions for lawyers, while the much needed scientific data collection continues.

The application of law over a subject matter with undefined boundaries is certainly challenging, but the focus needs to be on how the law can achieve effective governance, without relying on data collection and the acquisition of scientific knowledge that may take years, and which may always be changing, uncertain and contested. The message from the World Water Congress is important in highlighting just how little we know, and the challenge ahead in collecting the needed information. However, lawyers should not be hindered by this knowledge deficit in assessing the future for transboundary aquifer governance. Instead, the focus should embrace the challenge of how to regulate the unknown, as waiting for scientific certainty may cause a damaging delay when it comes to the integrity of the resource, as well as the ecosystems and communities that rely on them.

 

 Notes:

[1] Whilst international water law does cover the majority of groundwater in its scope, the rules primarily relate to surface water characteristics. Consequently it is accepted that the unique characteristics of groundwater and aquifers warrant different regulation than that traditionally applied to surface water.

[2] International Law Commission Draft Articles on the Law of Transboundary Aquifers (UNGA Resolution A/RES/63/124, 11 December 2008) (‘Draft Articles’).

[3] Report of the Sixth Committee, The Law of Transboundary Aquifers (UN Doc. A/68/470, 19 November 2013), at paragraph 3.

[4] G.E. Eckstein and F. Sindico, ‘The Law of Transboundary Aquifers: Many Ways of Going Forward, but Only One Way of Standing Still’ 23 Review of European Community and International Environmental Law (2014), 32.

[5] Other instruments such as the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes, and the 2002 UNECE Model Provisions on Transboundary Groundwaters address governance over some groundwater, but not aquifers specifically.

[6] The debate over sovereignty has sparked a lot of debate in the literature; see S.C. McCaffrey, ‘The International Law Commission’s flawed Draft Articles on the Law of Transboundary Aquifers: the way forward’ 36 Water International (2011), 566; O. McIntyre, ‘International Water Resources Law and the International Law Commission Draft Articles on Transboundary Aquifers: A Missed Opportunity for Cross-Fertilisation?’ 13 International Community Law Review (2011), 237; G.E. Eckstein, ‘Managing buried treasure across frontiers: the international Law of Transboundary Aquifers’ 36 Water International (2011), 573.

[7] Only three have been the subject of fully ratified treaties (Specifically, over the Franco-Swiss Genevese Aquifer, the Nubian Sandstone Aquifer System and the North Western Sahara Aquifer System). Several treaties have been signed, but are not yet in force (for example, over the Guarani Aquifer System, the Iullemeden, Taoudeni/Tanezrouft Aquifer System, and the Disi Aquifer System).

[8] There are 263 transboundary surface water bodies, while 592 is the latest figure for the world’s transboundary aquifers, as determined by the International Groundwater Resources Assessment Centre. See IGRAC, Transboundary Aquifers of the World – the Special Edition for the 7 World Water Forum 2015 (International Groundwater Resources Assessment Centre, 2015).

[9] I. Shiklomanov, ‘World fresh water resources’, in: P. Gleick (ed.), Water in Crisis: A Guide to the World’s Fresh Water Resources (Oxford University Press, 1993), 13, at 13.

[10] K. Villholth, ‘The neglected role of groundwater in climate change adaptation and disaster risk reduction’ (2009) 6 IOP Conference Series: Earth and Environmental Science 292062.

[11] There has been a ‘silent revolution’ in groundwater abstraction over last 50 years, driven by population growth, technological and scientific progress and economic development. See J. van der Gun, Groundwater and Global Change: Trends, Opportunities and Challenges (United Nations World Water Assessment Programme, UNESCO, 2012)<http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/SC/pdf/Groundwater%20and%20Global%20Change.pdf>.

[12] Land-use changes such as urbanization can have significant impacts on aquifer recharge

[13] Materials from the land’s surface such as oil, road salts and chemicals can move through the soil and polluted groundwater, which is then extremely difficult to decontaminate

[14] Andrew Ross, The Governance of Transboundary Aquifers: Towards a Multicountry Consultation Mechanism, The Case of the Stampriet Aquifer. Paper presented at the XV World Water Congress, Edinburgh, UK (25-29 May 2015).

[15] Geert-Jan Nijsten, Worldwide Assessment of Transboundary Aquifers with a Focus on the African Continent. Paper presented at the XV World Water Congress, Edinburgh, UK (25-29 May 2015). <http://www.un-igrac.org/publications/595>.

[16] Rosario Sanchez, Identifying and characterizing transboundary aquifers along the Mexico-US border: An initial assessment. Paper presented at the XV World Water Congress, Edinburgh, UK (25-29 May 2015).

[17] Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted 17 March 1992; entered in force 6 October 1996) 31 ILM 1312

[18] Draft Articles, n. 2 above, Article 12.

[19] Ibid., Article 15.

[20] Draft Articles, n. 2 above, Article 8(2): ‘Where knowledge about the nature and extent of a transboundary aquifer or aquifer system is inadequate, aquifer States concerned shall employ their best efforts to collect and generate more complete data and information relating to such aquifer or aquifer system, taking into account current practices and standards.’

Conference Presentation: XV World Water Congress

Last week I  jumped in and presented my research for the first time, speaking twice at the International Water Resources Association’s XVth World Water Congress 2015 in Edinburgh.

In a special session organised by the London Water Research Group and the University of East Anglia, “Levelling players and context: Re-examining policy for transboundary water allocation and governance”, I addressed the utility of international water law as a mechanism for addressing power asymmetries between states.

Drawing from my MSc dissertation research, I proposed that international water law can both further and counter power asymmetries, depending on how it is used. I suggested that the ‘claim/counter claim culture’ of substantive principles (such as equitable and reasonable use of water resources) often leads to powerful states dominating, thus reinforcing power asymmetries. On the other hand, procedural rules allow for a more effective avenue to challenge power asymmetries, due to their static and unambiguous nature regarding state obligations. I pointed out that power asymmetries often materialise and develop through continuing systemic processes. Thus, counter-hegemonic strategies must not merely focus on unequal outcomes and the status quo, as the status quo is constantly changing. Procedural rules provide opportunities to challenge systemic processes as they happen, thus offering a counter-hegemonic tool for power asymmetries ‘in action’. I concluded that the way international water law is used is key to challenging power asymmetries and levelling the playing field, not merely the existence of international water law itself.

I also delivered a presentation entitled, From Water to Land: Hope for the West Bank through International Water Law for the session, “Water Law: Water governance, law and human rights”. This leads from my research conducted in Palestine, which will soon be produced as a working paper.

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