Nisheet Dabadge (Nishu Dabadge) — Water Law Notes 10

International Waters

The Berlin Rules on Water Resources, which supersede the Helsinki and Seoul rules (for international water and groundwater resource allocation through a version of reasonable use riparianism / equitable apportionment), entitle all countries to make “equitable and reasonable” use of an international body of water within their territory based on the following factors:

· Geographic, hydrographic, hydrological, hydrogeological, climatic, ecological, and other natural features

· Social and economic needs of the basin countries

· Populations dependent on the waters of the international drainage basin in each basin country

· Effects of the uses of the waters of the international drainage basin in one basin country upon other basin countries

· Existing and potential uses of the waters of the international drainage basin

· Conservation, protection, development, and economy of use (and the costs to achieve these purposes)

· Availability of alternatives of comparable value to the particular planned or existing use

· Sustainability of proposed or existing uses

· Minimization of environmental harm

One thing to note is that these rules contain no factors in regards to allocating water rights based on how much each country “contributes” to international water basins. The Convention on the Law of Non-Navigational Uses of International Watercourses has also been ratified by 36 countries and is similar to the Berlin Rules. Many countries have also recognized a human right to drinking water, water for cooking, and water for sanitary usage. Countries can take disputes to the International Court of Justice as well as the courts of a disputant state if allowed, although sovereign immunity might serve as a complete defense. In the US, water treaties also exist to address disputes over international watercourses and carry the same weight as federal law, superseding state law where there is a conflict.

United States-Mexican Relations

There are two primary shared watercourses shared between the United States and Mexico, the Colorado River (which by treaty the US is required to allow at least 1.5 million afa of flows from into Mexico) and the Rio Grande River (which Mexico by treaty is required to allow about 350,000 afa of flows from into the US). A smaller river that starts in Mexico and feeds into the Gila River in Arizona, the San Pedro River, has been designated as the first American Riparian National Conservation Area due to its great biological diversity. The International Boundary and Water Commission (IBWC) was created to settle differences between the countries in relation to the 1906 Rio Grande Treaty and future border issues, and has been seen as a respectable example of international cooperation.

United States-Canadian Relations

The US and Canada have entered into the Boundary Water Treaty of 1909, which gives each country equal and similar rights over boundary waters and lets each country use / divert tributary waters (to boundary waters) and waters that traverse the boundary however they like so long as interferences do not occur (where interferences occur, legal remedies relevant to the country of diversion exist). The treaty also created the International Joint Commission, which assesses and resolves boundary water disputes and also contains a framework of priorities of water use (domestic / sanitary usage first, then use for navigation / canals, and lastly for power and irrigation).

The Great Lakes-St. Lawrence River Basin Water Resources Compact (between the 8 states touching the great lakes) and Agreement (between those 8 states and two Canadian provinces also touching the great lakes) allow the states to make riparian use of Great Lakes water and hydrologically connected groundwater while also preventing diversions or exports to the outside of the basin except as a “product” (bottled water), further requiring the basin states to create water conservation programs. Thus, the states are able to obtain the benefits of regional resources while also being able to impose the threats of regional enforcement.