Treat me to a treaty?

Hello again! This week I’m focusing on the legal frameworks and treaties for shared surface waters (I will come to aquifers another time) that Wolf claims are key to hydropolitical peace. (1999: 3). Importantly this ‘soft law’ isn’t legally binding, so the assumption should not be made that treaty = peace. However, opening a discursive commons for negotiation (often) holds out a hand to resolution, for cooperation is not harmony, but is rather an active attempt to prevent potential or current conflict (cited in Goulden, 2009: 806). The figure below shows the distribution of what world transboundary water treaties are focused on. This potential for conflict is predicted to rise in Africa, where the biggest effects of population growth and climate change on already scare waters will be felt simultaneously, putting tremendous strain on the continent least equipped to cope.

Source: Human Development Report 2006.
Beyond scarcity: Power, poverty and the global water
crisis. Chapter 6. UNDP, 2006

So what is in place to mitigate bust-ups over this precious liquid? Internationally there is the UN 1997 ‘Convention on Non-navigational Uses of International Watercourses’. Wolf notes the inherent difficulties in developing guidelines for allocations of a resource that ‘is mobile, fluctuates in time and space, and ignores political boundaries’ (1999:4). Such difficulties result in vague advice in the convention, although Wolf notes that this is expected as there can be no ‘one size fits all’ for the vastly different hydrological and socio-cultural landscapes of shared waters. The convention is not legally binding and only 8 transboundary water disputes have been heard at the International Court of Justice. It advocates ‘reasonable and equitable use’ that ‘does not cause significant harm’ to other riparians, and encourages treaties between basins to address the specificities of transboundary waters. 

One such treaty exists in the ‘Zambezi Watercourse Commission’ (ZAMCOM) established and ratified by 7/8 member states of the South African Development Community in whose territory the Zambezi basin lies. Its main aim is poverty reduction through the shared resource. Similarly to Wolfs findings in wider treaties ZAMCOM favours downstream riparians and existing uses. He finds in 49 treaties studied that all favour needs based claims to water allocation rather than ‘rights’ centred claims more commonly discussed. Compensation and ‘trades’ are common in most treaties, often trading water for HEP, such as in The Lesotho Highlands Water Project (Wolf, 1999:13).

But why this sudden switch to thinking about needs? Wolf states that the explanation is simple – needs are quantifiable and rights aren’t, how do you decide whose rights are well… right?  Certainly thinking about needs is easier, but allocation of needs can be influenced by uneven power and resource distribution. If I’ve got more arable land than you, the money to irrigate it and infrastructure to support markets for my produce, am I entitled to more water simply because some coloniser portioned themselves a more ‘valuable’ chunk of the continent? It is a question I will leave you with, alongside this call from Wolf (1999: 15) to encourage treaty negotiations for all 261 international basins:

“Despite the inherent difficulties, treaties are not only the best representation of local needs and settings, but they also carry the highest priority in international law. By encouraging local negotiations, global political issues could also be better avoided.”

Citations.

Goulden, M., Conway, D. and A. Perschino. (2009). ‘Adaptation to climate change in international rivers basins in Africa., Hydrological Sciences Journal, 54(5), 805-828.

Wolf, A.T. (1999) ‘Criteria for equitable allocations- the heart of international water conflict.’,  Natural Resources Forum, 23, 3-15.