Author:O'Connor, Rush

This Note focuses on nations with shared water sources forming transboundary agreements to promote peaceful solutions and to protect people's right to water. Given the growing scarcity of water, this Note emphasizes the urgent need to create agreements. It argues that international agreements are ineffective with respect to protecting the right to water and do not create proper forums for settling disputes over water. Yet international organizations can take an active role in helping to form transboundary agreements and acting as mediators when an agreement fails. This Note then explores how transboundary agreements work and why they are better than international agreements when protecting the right to water. In particular, the Note examines two of the more successful examples--the International Joint Commission and the Indus Water Commission--and how they can serve as models for other agreements. Finally, the Note then outlines the components necessary for effective transboundary agreements, which will in turn create a safer world and protect the right to water.

CONTENTS I. INTRODUCTION II. BACKGROUND A. Water Scarcity B. International Agreements C. Regional Agreements D. Transboundary Agreements 1. The International Joint Commission 2. Indus Waters Treaty of 1960 III. WHY TRANSBOUNDARY AGREEMENTS? A. The Flaws in an International Solution. B. How Transboundary Agreements Address These Issues. IV. THE KEY COMPONENTS IN AN AGREEMENT. V. CONCLUSION. I. INTRODUCTION

There are 263 sources of fresh water shared by multiple nations. (1) These water sources serve about 40% of the world's population and account for approximately 60% of the total fresh water on the planet. (2) Of the 263 shared sources of water, only 105 of the sources are the subject of an agreement regulating what a nation may do with the source. (3) Most of the existing fresh-water agreements are significantly limited in scope. (4) Although some shared sources of water may not soon create controversy, the Organization for Economic Co-operation and Development (OECD) predicts that "by 2050 almost 40 per cent of the world population will live in areas of high water stress." (5) One study suggests that four billion people currently experience water scarcity during at least one month of the year. (6) Since World War II, there have been 37 conflicts over shared sources of water. (7) While most were minor, more conflicts are likely to arise as the planet becomes more arid. (8) To address this problem before it worsens, every nation with a shared source of water should create a bilateral or multilateral agreement equipped to handle any disputes over the shared body of water. By examining the failures of other strategies and the benefits of transboundary agreements, it is possible to see how all countries with shared resources must form transboundary agreements to better protect water rights for all.


    1. Water Scarcity

      Although water covers most of the Earth's surface, fresh water has become increasingly scarce, impacting countries and regions all over the world. In the U.S., California has entered its fourth year of drought and, despite being hit hard by El Nino in 2015, the drought will likely continue. (9) Syria has experienced a drought since the civil war began in 2011, and some researchers argue that the drought itself provided an indirect cause of the conflict. (10) The lack of water caused rising food prices and placed stress on the sources of water that do exist in Syria, all of which created unrest and government stress. (11) The Aral Sea in Central Asia, which provides water to about 43 million people through the rivers it feeds, has shrunk to 10% of its original size since 1960. (12) In addition to these regions, South Africa, Brazil, the Caribbean, and North Korea all currently experiencing some of the worst droughts in decades. (13) As Earth becomes a drier planet, tensions will rise between countries over shared sources of water. (14)

      While it may not instantly lead to conflict, situations where one country controls a shared source of water could lead to massive droughts in another country or countries. (15) For example, by building dams on rivers shared with Syria and Iraq, Turkey has helped worsen the water conditions for these two countries. (16) Without enforcement mechanisms and a forum to discuss the dam, Iraq and Syria lacked the means to take preventive action. (17) The dam drastically slows the flow of the rivers to Syria and Iraq. (18) This has in particular impacted Syria, which is already suffering from drought conditions. (19) Because the Middle East is one of the world's most arid regions, (20) similar situations will inevitably lead to future conflict if countries do not establish ground rules for using shared water sources. (21) Over time, nations have tried multiple approaches to address this issue, such as international agreements, regional agreements, and transboundary agreements. (22)

    2. International Agreements

      Some of the earliest attempts to protect the right to water took the form of international agreements. (23) Currently, there exists no enforceable international treaty that has fully recognized an enforceable right to safe access to water. (24) The international community began pushing for a recognition of this right during and immediately after World War II. (25) The 1949 Geneva Conventions forbid nations from preventing access to water in times of war or conflict. (26) This was further expanded in the 1970s with Protocols I and II of the Geneva Conventions, which made it a war crime to attack or destroy water sources and installations. (27)

      While there have been other attempts to make safe access to fresh water a protected right for all, the most recent attempt occurred with a resolution passed by the U.N. in 2010. (28) However, the resolution did not bind any country and instead merely recognized the right. (29) Still, 121 nations supported the resolution, despite the fact that 41 nations abstained from adopting it. (30) One of the main reason that nations such as the U.S. abstained from adopting the resolution was due to fear that the resolution would interfere with U.N. actions in Geneva in regards to the right to safe access to water. (31) Further, concerns over what exactly the right would require remained an issue for nations that abstained from the vote. (32) The nations that did vote for the resolution voted for different reasons and recognized the right in different ways. (33) This could create future problems, because the lack of consensus could make the right difficult to enforce. (34) While the resolution from the U.N. General Assembly did recognize the right to water, Catarina de Albuquerque, the U.N.'s Independent Expert, acknowledged that the resolution at most existed as a "powerful symbolic gesture." (35) While proclaiming the right, the resolution accomplishes little because it does not define what the right entails. (36) Although some nations support a right that requires governments to provide safe access to water, others disagree. (37) Progress has been made on the international approach, but regional agreements and bilateral agreements have done more to ensure that nations have safe access to water. (38)

    3. Regional Agreements

      Regional agreements often have a right to water included in their charters. (39) These agreements encourage peace by recognizing that all people and their neighbors deserve the right to safe access to water. (40) For instance, the Organization of American States (OAS) and the South Asia Association for Regional Cooperation (SAARC) provide an illustration of how most regional pacts deal with water. (41)

      While not explicit, nations in the OAS recognized the right to safe access to water under the right to basic public services in the Protocol of San Salvador. (42) The agreement focuses on nations ensuring that all of their citizens have access to water. (43) Yet, when it comes to transboundary disputes, the protocol lacks a forum to settle them. (44)

      In South Asia, the SAARC explicitly recognizes the right to safe access to water. (45) Again this encourages countries to recognize that everyone who lives in their region has a right to safe access to water, thus encouraging peaceful solutions when dealing with disputes of shared sources of water. (46) Like the OAS, this agreement also fails to provide a mechanism to handle disputes. (47)

      Regional pacts similar to international agreements generally focus on having countries recognize the right to safe access to water, but avoid the question of how to handle any disputes over water sources. (48) The lack of a forum to address any issues between nations on shared sources can lead to tensions without a means to resolve them. (49) For example, an agreement exists on the usage of the Nile River, but the nations involved have failed to adjust the agreement to address modern concerns. (50) Because the agreement lacks any forum to address the dispute, tensions have arisen, particularly for Egypt, which obtains 95% of its water from the Nile River. (51) Regional agreements have the potential to help protect the right to water, but without enforcement mechanisms, they remain as inefficient as international agreements.

    4. Transboundary Agreements

      Transboundary agreements involve at least two or more nations and center on a shared source water or some other item. (52) Transboundary agreements over water provide a means to handle disputes in a peaceful manner. (53) Many of these agreements have the same goal of protecting each nation's right to the water source, but they accomplish this by different means. (54) Some treaties provide very limited guidance on the use of a shared source of water, but others, such as the International Joint Commission and Indus Waters Treaty, provide an extensive framework that has helped protect the right to safe access to water for all nations involved. (55) These two treaties...

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