Oregon Review of International Law
From the moment States created political boundaries to define their territory, they have shared water. There are 263 transboundary lake and river basins worldwide and 300 known transboundary aquifer systems. Whenever sharing is present, the opportunity for conflict is too. Climate change and increasing population are only two factors that may lead to increasing conflict if attention is not given to these situations. Thankfully, sharing water also creates an opportunity for cooperation. Throughout the world, there are increasing examples of conflict and cooperation regarding shared water resources. International water agreements can promote regional peace and security and encourage economic growth. By asking States to cooperate, they must account for their current and future uses within the natural system, which can lead to the best use of the water. An agreement can ensure continued cooperation in low water years or support data collection and sharing because a transboundary relationship already exists. Without an agreement, decisions can become reactive and lead to inefficiencies.
First, States need to come together to determine a use and allocation agreement for their shared water. One aspect of this discussion must be how the water is currently being used. Historically, this part of the data gathering and subsequent agreement focused only on human usage of water. This is a mistake if the goal of the agreement is continued sustainability and economic success of the signatory States. To achieve this goal, more must be considered. Humans are not the only users of water. Water is also utilized by related ecosystems. Therefore, to truly achieve a successful agreement, States must assess the local natural environment and quantify how their countries benefit from the ecosystems services it provides. Accuracy in this endeavor depends heavily on scientific data and stakeholder involvement. Once the physical system is understood, agreement terms can be written for its protection. These should include managing the water as part of a larger system, including the recharge features, tributaries, associated groundwater, and any related fragile ecosystems. In particular, for shared surface water, environmental flows provisions that create a healthy flow regime are critical. Using these holistic mechanisms, States are better positioned to respond to climatic variations and other variables that may not yet be expected.
Amy Hardberger, Forgetting Nature: The Importance of Including Environmental Flows in International Water Agreements, 17 Or. Rev. Int’l. L. 307 (2016).