It argues that adapting watercourses agreements like the Itaipu Treaty to the provisions of the Convention is a way to foster. Doing so would be advantageous not only to the treaty parties, but also to the other countries in the water basin and to the international community as a whole.
United States Water Law: An Introduction
The monograph is dedicated to the memory of Prof. Efrain Cardozo and to Prof. Ruben Ramirez Pane The entire article is available here. He can be reached at nsslavko gmail.
A Brief Introduction To Water Law | HuffPost
The International Law Association ILA started in its study of the principles and rules of international law applicable to the rivers making or being intersected by state boundaries. It was a moment after WWII when the enhanced harnessing of hydropower potential of international rivers was seen as a necessity. The rising development needs of nations in parallel with growth of populations resulted in enlarging demand for electric energy production. Engineering aspects of harnessing rivers were not the problem; the challenge was the applicable law.
The lack of accepted and pertinent international law rules was a major obstacle not only for the economic development of nations, but also to the economy of the world in general. Early in the last century, the Geneva Convention relating to Development of Hydraulic Power affecting more than one State and other scarce sources of international water law had shown their limits and inadequacy not only for resolving pending developmental problems, but also for addressing serious interstate disputes concerning the rights of upstream and downstream states to the waters of international rivers some of the more well-known disputes included the Helmand, Indus, Nile, Jordan and Yarmouk, and Columbia rivers.
At the time, the U. International Law Commission was not willing to deal with the issue of codification of the applicable law considering it to be premature.
International Water Law
In the United Nations system, the problem was identified and investigated beginning in the late s, and addressed continually through the s when long-lasting efforts by different bodies and agencies finally resulted in the adoption of the UN Convention on the Law of Non-navigational Uses of International Watercourses in Besides a review of the broader context in which the ILA efforts and activities were situated, the monograph is focused on detailed elaboration and analysis of the documents drafted by the Rivers Committee, which, under the strong supervision and precise guidelines of the management bodies of the ILA, led step-by-step to the approval of the famous Helsinki Rules on the Uses of the Waters of International Rivers in This is followed by a discussion about the Helsinki Conference and its resolution, and then a detailed analysis of each chapter of the Helsinki Rules.
The concluding part of the monograph highlights the global acceptance and wide influence exerted by the Helsinki Rules on shared water resources and related disputes, in particular the UN Watercourses Convention. The monograph points out that the Helsinki Rules were neither ideal nor complete.
Those committees studied various topics and formulated a series of articles supplementary and complementary to the Helsinki Rules with the aim of updating, upgrading and revising certain details. In that way, the Helsinki Rules served as reliable ground for further exhaustive study in this field, what eventually resulted in the comprehensive and consistent set of ILA rules compiled in the Campione Consolidation of the Rules on International Water Resources, — Finally, the monograph calls for further investigation and critical analysis and evaluation of the entire body of work by the ILA in the field of international water law, including the outputs of two later ILA committees and the background leading to the approval of the Berlin Rules.
The author argued that such research might show that the Helsinki Rules, in the advanced, revised and enriched form, expressed in the Campione Consolidation, are a safe pivot, marking the way out from the confusion caused by emerging proliferation of wishful concepts and ideas in this still young branch of international law. The book is now available for purchase here. In four rivers in Aotearoa New Zealand, India, and Colombia were given the status of legal persons, and there was a recent attempt to extend these rights to the Colorado River in the USA.
Understanding the implications of creating legal rights for rivers is an urgent challenge for both water resource management and environmental law. Giving rivers legal rights means the law can see rivers as legal persons, thus creating new legal rights which can then be enforced. But legal rights for rivers are very new. To really understand what it means to give rivers legal rights and legal personality, we need evidence of what happens over a longer period.
This book uses the example of the environmental water managers EWMs in Australia and the USA as a way to understand the implications of giving legal rights to rivers. As individual organisations, EWMs have legal personality, and have been active in water resource management for over two decades. EWMs operate by acquiring water rights from irrigators in rivers where there is insufficient water to maintain ecological health.
EWMs can compete with farmers for access to water, but they can also strengthen collaboration between traditionally divergent users of the aquatic environment, such as environmentalists, recreational fishers, hunters, farmers, and hydropower. Figure 1: the paradox of legal rights: as legal protection goes up, this can lead to increasing complacency and an abdication of our responsibilities to look after the environment. This book explores how EWMs use the opportunities created by giving nature legal rights, such as the ability to participate in markets, enter into contracts, hold property, and enforce those rights in court.
However, examination of the EWMs unearths a crucial and unexpected paradox: giving legal rights to nature may increase its legal power, but in doing so it can weaken community support for protecting the environment in the first place Figure 1. Understanding this paradox requires going back to basics, and considering how the environment has been constructed in law over time.
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The book develops a new conceptual framework to identify the multiple constructions of the environment in law, and how these constructions can interact to generate these unexpected outcomes. Although there are myriad and widely different definitions of the environment in law, there are three main constructions of the environment in law: 1 a socio-ecological concept, 2 a legal object, and, most recently, 3 a legal subject Figure 2. Figure 2: understanding the paradox of legal rights for nature requires an understanding of how the environment is constructed in law.
By focusing on the way the environment is constructed in law, we can also start to identify the underlying cultural narratives, and the way those narratives can shape our legal response and drive legal reform. The legal object has no rights of its own, and links the concepts of legal weakness with the idea of being worthy of protection.
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The legal subject, on the other hand, does have legal rights, which generates an alternative narrative, where the environment can, and thus should , look after itself. These tensions have specific consequences for the environment, because of the initial construction as a highly flexible socio-ecological concept: the environment can be whatever it is defined to be in specific legislation, but it is also only ever what law articulates it to be.
As a result, the overarching concept of what the environment is, and why it matters, is highly vulnerable to shifting social values Figure 3. Figure 3: tensions between the different constructions of the environment in law can lead to significant shifts in the broader socio-ecological concept.
By examining the form and function of the EWMs in the USA and Australia, this book shows that changing cultural narratives about what the environment is, and why it does or does not deserve protection, can lead to large shifts in water law and governance. This paradox is not, of course, a foregone conclusion of granting legal rights to rivers. To request a review copy, please complete the form here. Lecturers and instructors can request an e-book inspection copy here. He can be reached at gabrieleckstein [at] law.
The purpose of the series was to engage in a dialogue and assess the merits and extent of such recognition, and to consider the possible ramifications for people and communities, and of course, the rivers protected under such actions. What emerged is an insightful and diverse conversation that offered critical and constructive analyses, and which furthered the conversation over this novel legal approach to the management of critical freshwater resources. Ganga — Hindu river goddess of the Ganges River. In modern societies, people and communities have traditionally sought to protect natural resources through environmental laws and regulation, with varying results.
As such, it is unclear whether affording legal personality to rivers is intended to plug gaps that environmental regulations have failed to fill, is an evolutionary step in environmental protection, or possibly, is some more fundamentally progressive approach to relating people with their surroundings. She also highlighted the reality that the new rights of these water bodies could only be protected through institutional mechanisms acting on their behalf, as well as adequate resources to support such responsibilities.
As Talbot-Jones rightly suggested, legal rights without the means to protect them could simply become irrelevant. Tangaroa — Maori god of rivers, lakes, and the sea and all that live within them. The practicalities of implementation, however, are only some of the challenges facing the realization and appreciation of such action. Both Virginia Marshall and Deborah Curran pointed out that while some of these efforts are couched in terms of values ascribed to indigenous communities, the steps taken may not necessarily comport with those values. While the former could manifest in mechanisms that emphasize individual and communal stewardship, prioritizing of indigenous and environmental concerns, and the installation of decisional authority in the collective citizenry or an appointed public body, the latter could result in regulation-based restrictions, priorities for human health, and decision-making authority assigned to a governmental agency.
Of course, the resulting mechanisms could also be a combination of both. However, whether a particular approach is appropriate for a distinct locale will likely have to be determined case-by-case since conduct that is justified in one set of natural, cultural, and political circumstances may not be supportable in a different scenario. Enki — Sumerian god of fresh water, as well as wisdom, intelligence, trickery and mischief. Despite the distinct differences in approaches taken in the various case examples explored in these essays, it is worth noting that in all of them, one of the chief motivations behind the decisions taken was the sincere desire to ensure the existence and sustainability of an invaluable freshwater resource.
While some may debate the necessity to protect a particular river or watershed, it seems reasonable to acknowledge that such a conservation justification generally is both rational and defensible. Hence, the resulting question that must be considered is whether the mechanisms used to achieve the particular objectives are appropriate and reasonable. Again, this can only be understood and undertaken on an ad hoc basis.
Nevertheless, altruistic environmental priorities are not the only or sole influences that have resulted in the recognitions of rivers as legal persons. In some instances, religious and cultural values may have helped inspire such outcomes. While such objectives do not negate the sustainability rationale, in the case of the Whanganui River, it injected an additional distinct element that provided a critical impetus for legal recognition of the river, as well as complicated and lengthened the process that resulted in a quite unparalleled institutional and legal framework the Whanganui River Claims Settlement Achelous — Hellenistic god of the Achelous River.
PROVISIONS CREATE CONTROVERSY
A further common factor that should be considered when examining the various examples is the assignment of guardianship or trusteeship for the river to a body whose responsibility is to represent the interests of the water body. Such action is clearly based on the need to operationalize the legal standing criteria that applies to all persons under law, whether human, corporate, or otherwise.
Nevertheless, similar distinctions and disparities can be identified in terms of representational capacity for corporations, as well as children and the mentally challenged, operating before the law. Accordingly, the institutional mechanism created to protect the interests of rivers that have been afforded individual legal recognition, and especially legal personality, should serve as a basis for further comparison and analyses. Whether rights of personhood recognized in rivers could lead to cleaner and more bountiful water for people and the nature is still unknown.
The judicial and legislative actions discussed in these essays are both novel and recent, and the complete range of outcomes, implications, and repercussions have yet to be fully ascertained.