International Water Law: The Contributions of Western United States Water Law to the United Nations Convention on the Law of the Non-Navigable Uses of International Watercourses
Spiegel, Carolin, Duke Journal of Comparative & International Law
TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Western United States Water Law B. The United Nations Convention III. COMPARISON OF US LAW AND THE CONVENTION IV. CASE STUDIES: FURTHER POSSIBILITIES OF IMPLEMENTATION ON THE NILE AND COLORADO RIVERS A. The Nile River B. The Colorado River V. CONCLUSION
When I was in the sixth grade, my English teacher predicted that within 25 years a world war would be triggered by a dispute over water. With ten years remaining, the situation does not seem immediately ominous. Yet across the world, we are facing huge water shortages. Indeed, today one in six people lacks access to safe drinking water. (1) According to the United Nations Environment Program's 2002 Global Environment Outlook, "by 2020 world water use is estimated to increase by about 40%, and 17% more water will be required for food production to meet the needs of the world's growing population." (2) The repercussions on our environment will be even more dire. Rivers are a key source of accessible water for all purposes. With 145 nations sharing 261 international river basins, interstate cooperative management is essential. (3)
Adopted in 1997, the United Nations Convention on the Law of the Non-navigable Uses of International Watercourses ("Convention") (4) is a strong effort to mitigate the impending water crisis by using legal means to resolve transboundary watercourse disputes. Drawn heavily from the principles of water law from the western United States, particularly that of equitable utilization, the Convention strives to serve as a framework for agreements on transboundary watercourses, and may represent a codification of customary international water law.
This note traces critical western US ideas of riparian rights from their origins in the Supreme Court of the United States to their presence in the Convention, and possible furtherance in selected river basins around the globe. The analysis begins with a discussion of western US riparian doctrines in the context of varying degrees of territorial sovereignty and integrity, followed by an overview of the Convention and commentary concerning its place in international water law. The principles of western US water law visible in the Convention, an excellent example of vertical borrowing, will then be treated in a direct comparison. Finally, the ideas of the Convention, with a focus on the principles inherited from western US water law, will be discussed in the case studies of two comparable, overworked, arid-region rivers, the Nile and the Colorado.
A. Western United States Water Law
The doctrines of western US riparian law have contributed heavily to the four principle theories of water law, making them worthwhile to review before discussing US case law and doctrines produced. The four principle theories include absolute territorial sovereignty, absolute territorial integrity, limited territorial sovereignty, and community of interests.
The first of these theories is absolute territorial sovereignty, synonymous with the Harmon Doctrine of 1895. During a dispute between the United States and Mexico over the Rio Grande, Attorney General Judson Harmon advised that a State has total freedom to act with regard to any portion of international watercourse that is situated within the boundaries of its territory, regardless of any harm its actions may cause to other riparian States? This strict doctrine, favored by upper riparians, (6) has never actually been put into practice. (7) Indeed, the convention that resolved the Rio Grande situation was based primarily on an equitable solution, not the Harmon Doctrine, (8) and the doctrine is generally considered to be an anachronism in today's interdependent, water-scarce world. (9)
Absolute territorial integrity, also known as "riparian rights," falls at the opposite end of the spectrum and embodies the idea that an upstream state may do nothing that might affect the natural flow (quantity and quality) of the water into the downstream state. …