"Reframing the Water Security Dialogue", Journal of Water Law 20, no. 2/3 (2009): pp53-60.

Research Insight:  The authors set the water security scene in chilling and stark terms: we are witnessing the formation of the perfect storm of food, water and energy shortages caused by a combination of population growth, triggering new rural and urban demands, and global climate change, which threatens to decrease the net available supply in many areas of the globe and to aggravate already contaminated supplies. As a result, the increased incidences of local and regional water problems might now be more accurately described as comprising a global water security problem. The responses to these national and regional water conflicts-of-use have been recast as a problem of global security on a par with the prevention of war and terrorism.

In response, this paper sets a clear challenge for the legal profession: whether or not we can do our part in developing a revolutionary re-think of the conceptual framework for water security, where the contribution of (water) law is more dynamically considered and integrated.  For the authors, this rethink is so badly needed as water security is so often thought of in military terms: responses to national and regional water conflicts-of-use have been recast as a problem of global security on a par with the prevention of war and terrorism. 

Scottish Relevance:  From the Intergovernmental Panel on Climate Change (IPCC) down, scientists are generally agreed that climate change may result in less net available water in areas that are already water stressed, making water insecurity even more of a pressing issue. This in turn raises compounding concerns, as population growth bumps up against limited, and often degraded, natural resources, including water.  Furthermore, numerous scientific studies demonstrating and forecasting the reduced flows for many rivers around the globe means that the potential for increased hydro production will also be diminished as a result of climate change, even as demand for energy relentlessly increases year on year.

The University of Dundee and the Scottish Crop Research Institute are jointly taking a strong Scottish lead on climate change issues, through their newly established Centre for Environmental Change and Human Resilience (CECHR).  At a national level, climate change is a paramount issue for the Scottish Parliament, which unanimously passed the 2009 Climate Change (Scotland) Act which includes measures to reduce Scotland's greenhouse gas emissions by at least 80 per cent by 2050, one of the toughest targets set anywhere in the world.

Authors: Professor Dan Tarlock and  Professor Dr Patricia Wouters

Resources: Download the research paper Reframing the water security dialogue full text. Start/ join a debate on this Insight through our LinkedIn Group

The authors argue that the current concept of water stress as a source of armed conflict and regional unrest, itself a zero-sum game, is too broad to draw serious policy conclusions, and can actually be an unhelpful distraction from the positive options available to States grappling with serious water issues.  In particular, water resources management (including water law) is identified as offering a range of opportunities for achieving balancing interests to meet security needs related to such core issues as availability, access and addressing conflicts-of-use.

Such a rethink would be silo-busting and would challenge lawyers and non-lawyers alike to recast how they think about water security and the appropriate policy responses therein.  The evidence is that the authors are pushing against an open door on this subject: no less an august professional association than the UK Institution of Civil Engineers (ICE) are quoted in this paper placing the issue in a multi-dimensional context, well beyond a sole focus on engineering or military security: “the importance of water security to national security should be a core component of policy making. Water security should be considered as part of climate change mitigation and adaptation policy [. . .] Given the impending worsening of water security, particularly in some developing countries, the UK Government should put water at the centre of its international development policy.'

The contribution that water security can make now as a stable and unifying force, which they argue could be enhanced in the future through the final ratification of the UN Watercourses Convention , is clearly stated: as it has evolved, especially over the past 50 years, the body of rules of international law that govern international watercourses is universally identifiable.  Contained in customary norms and treaty law, international water law comprises a significant body of substantive and procedural rules,  The governing rule of `equitable and reasonable utilisation', found in both customary and treaty law and endorsed in state practice, provides the flexible legal prescription for determining watercourse states' duties and obligations regarding the use of their shared freshwaters.  The these five constituent elements of transboundary watercourse regimes (scope, substantive rules, procedural rules, institutional mechanisms and dispute settlement) provide a framework for the peaceful management of the world's shared freshwaters.  
 
However, this on its own is not enough: the reframing of the debate cannot be taken over by one profession alone.  Water lawyers need to work in a multidisciplinary way with economists, scientists, experts on international relations & development and those in other professions to jointly reframe the debate on water security. Exactly this commitment to multidisciplinary thinking is at the heart of the IHP-HELP Centre’s ethos and raison d’etre, and is the reason why guest political science writing research features on this Easter edition of FRETWORK just as guest water economics writing research featured on the previous, spring, edition.

"Sharing Transboundary Waters; An Integrated Assessment of Equitable Entitlement: The Legal Assessment Model", IHP-VI, Technical Documents in Hydrology, No. 74, UNESCO, Paris, 2005

Research Insight:  the UN Millennium Development Goals, rightly, call on States to take action in order to reduce by half the number of people around the world without access to drinking water and sanitation; moreover, more than one-half of the world's population depend upon water resources that are shared by sovereign nations. 

To meet this challenge and just as a first step, it is essential that national governments are equipped to determine and enforce their riparian legal entitlements and obligations, in order to be able to deliver water and sanitation to their people. With this aim, this research presents a pragmatic, interdisciplinary methodology for interfacing water law and water science with the objective of assisting States to develop effective national water policies in an international context.

In short, how can transboundary watercourse States (upstream, downstream and those that share groundwater) devise national water policies in line with their international entitlements and obligations, whilst ensuring that their neighbours (legally) "do right" to them in turn?  These are the thorny question that the Legal Assessment Model (LAM) was designed to answer.

Specifically, the IHP-HELP Centre developed the LAM as a pragmatic tool for national governments to develop national water policy based upon sound water law and science. 

The governing rule of international law - "equitable and reasonable utilisation" -requires each watercourse State to share the uses of transboundary water based on "all relevant facts", and one of the key value propositions of the LAM is to relate this generality into the specific situation of a State needing to know up to what parameters its national water laws can be framed and still be internationally acceptable.

The LAM is grounded in research conducted in China (upstream), Mozambique (downstream) and Palestine (shared groundwater) and is very much real-world, and practically focused. 

Scottish Relevance:  this is globally-focused piece of research based on hands-on research undertaken in the Middle East, Africa and Asia.  The IHP-HELP Centre is proud to support the work of the Scottish Government in bidding for the 2015 World Water Forum to take place in Glasgow and it is only through the international reach and recognition of key research products such as the LAM that our Centre is able to offer practical support in this, and other, regards.

Authors:  Mr Andrew Allan, Dr Alistair Rieu-Clarke, Dr Sergei Vinogradov and Professor Dr Patricia Wouters

Resources: Download full text of the LAM. Start/ join a debate on this Insight through our LinkedIn Group

The LAM model is a flexible tool applicable to upstream, downstream and transboundary groundwater and may be used to develop national water plans where a State must manage transboundary water resources. The LAM can provide legal guidance for data information and exchange agreements, for joint river basin studies, as a process for negotiating a treaty or for facilitating dispute avoidance. The LAM demonstrates, in a concrete way, how water law and science need to interact in order to provide transboundary watercourse States with the guidance necessary to devise an effective national water policy.

Implementation Phase 1: Defining Scope

• In legal, hydrological (i.e. scientific) and economic terms.

Implementation Phase 2: Data Collection and Analysis

• Legal Audit Scheme: method for reviewing existing law at international and national levels
  
• Relevant Factors Matrix: provides format and method for collection of requisite data and information.
  
• Glossary of Terms: defines terms used in LAM to ensure consistency across the disciplines (economics, science and law).
• Assessment of the quality and quantity of available of the data collected in Phase 2

Implementation Phase 3: Evaluation

• The interests of the TWC States must be weighed in and equitable manner against one another.
  
• Methods and techniques available to best determine whether current utilisation of a transboundary watercourse state is consistent with “equitable and reasonable utilisation” and other applicable legal parameters, e.g. the test of "significant harm".

Implementation Phase 4 : Next Steps

Transboundary watercourse State can use the LAM to audit their own laws in order to ensure their compatibility with their international obligations. Such States can also use the LAM to consider whether existing or proposed use of transboundary waters by neighbouring states is compliant or not, e.g. against the "equitable and reasonable utilisation" test, with respect to its own riparian rights. In the case of a negative, there are a number of actions that it might consider to protect its equitable entitlement, e.g. dispute settlement measures, such as arbitration, adjudication, conciliation and mediation. 

In many instances diplomatic negotiations are seen as the primary option and the obvious starting point of conflict resolution. However, failure to enter into or resolve the matter through negotiations may make third-party resolution the only available option. The choice then is between formal binding dispute settlement mechanisms (arbitration and adjudication) and non-litigious methods. Arbitration and adjudication are regarded as more expensive and time-consuming than other methods of dispute settlement. On the other hand, they may be the only way out if all other means fail and if the alternative is a stalemate that will result in an unnecessary prolongation of international tension.

"Drowning with Neglect? Water Security in East Asia and the Role of APEC", Morten Böås and James Hentz (eds.) New Critical Security and Regionalism: Beyond the Nation State Aldershot: Ashgate, 2003, pp. 17-32.

Research Insight:  this regionally-focused water security paper complements the other papers in this edition of FRETWORK through its political science/ international relations lens, as compared to the water law lens of the Dundee Centre-authored papers herein.  The author focuses on a international, pacific rim, grouping of twenty-one "member economies" which together form the Asia-Pacific Economic Co-operation forum (APEC). 

APEC is a very important grouping: Members account for approximately 40% of the world's population, approximately 54% of world GDP and about 44% of world trade (source).  Its outlook is made clear in the main body of its mission statement: "We are united in our drive to build a dynamic and harmonious Asia-Pacific community by championing free and open trade and investment, promoting and accelerating regional economic integration, encouraging economic and technical cooperation, enhancing human security, and facilitating a favorable and sustainable business environment." (source)

Scottish Relevance:  The University of St Andrew's School of International Relations is the only one of its kind in Scotland and is recognised globally for the exceptional quality of its research and teaching.  The Universities of St Andrews and Dundee have longstanding links and by reinforcing these in the field of water security it is hoped that opportunities for useful academic collaborations can be fostered that advance our overall understanding of this key topic. 

Author: Professor Ian Taylor, Professor in International Relations at the University of St. Andrews' School of International Relations, writing in the above publication.

Resources: Download pdf River basin management& the Water Framework Directive: in need of a little HELP? Drowning with Neglect? Water Security in East Asia and the Role of APEC article from above publication.  Start/ join a debate on this Insight through our LinkedIn Group

Professor Taylor sees in APEC almost a purely economic (and specifically neo-liberal) entity; indeed, the above quote is overwhelmingly focused on economic issues.  For him, APEC is a primarily economic-oriented body the paramount focus is the economic "bottom line" and how to dismantle barriers to "free trade" where the state is seen as "economically irrational" and hence, "so the discourse goes, reducing its role in the economy leads to efficiency and the 'natural' behaviour of 'the market'". In this paradigm, water is a commodity from which profit might be extracted, but not much else.  As such he sees "hard security", i.e. military security, being the prime definition within APEC as to what constitutes security, since any other senses of the term "security" are largely ignored. 

As a result, "notions of what constitutes best practice vis-à-vis governance" (alongside other) "issues are required to fit with the dominant ideology in the contemporary era viz. neo-liberalism", resulting in a "redefinition of security into market-friendly, profit-making terms". APEC is "suggested" on this argument as constituting "an ongoing security complex"; as such it can be critically analysed as to whether it is helping to improve Asian security (with water as the focus of this article) or not.

Professor Taylor contrasts this approach with the emergence of "water, education, food, population, productivity, and the environment as well as the more orthodox preoccupations relating to military concerns now being included in the study of security" where the "synomity of 'security' with 'national security' (defined in military terms)" is broken and, in which circumstances, "including water  issues within the ambit of security is valid. In this light, security is personal, economic and social and includes ecological matters" (references: Mathews, J. (1989) ‘Redefining Security’, Foreign Affairs no. 68, Spring, pp. 162-177; and Myers, N. (1989) ‘Environment and Security’, Foreign Policy no. 74, Spring, pp. 23-41).

He concludes that these vital issues "pertaining to water security and the wider environment are absolutely crucial for the future of the APEC security complex yet are ignored and sidelined"; as a result, and in its present form, APEC is seen to be in dire need of accepting "broader definitions of good practice .. and security" so that it a force that "contributes to peace, equitable development and prosperity—in short, security for all", as opposed to simply a force for economic neo-liberalism.