Thursday, December 16, 2010

Report of the Commission on Cyanobacteria in Québec


The report (in French) on lakes and cyanobacteria in Québec by the National Assembly Commission on Transports and the Environment has been released at the beginning of December (previous blog post).

As with the consultation process, the report feels slightly underwhelming. It constitutes more a synthesis of what is known and acknowledged as necessary for better water management with respect to cyanobacteria than a significant innovative proposition for the future. This does not detract from the value of the recommendations presented in the report, among which are the following:

1 - Confirm and assign with more precision the respective responsibilities among stakeholders involved in water management. On this subject, one of the more focussed comments of the Commission is worth quoting because it highlights the tension between, on one hand, homogenisation through integration, and on the other hand, subsidiarity through delegation as well as variability due to adaptation to local conditions - «Cependant, la réglementation sur la gestion de l’eau et de ses bandes riveraines est très variable d’une municipalité à l’autre, voire au sein d’une même MRC. De plus, certains propriétaires riverains estiment avoir des droits acquis qui échappent aux compétences municipales. La Commission souhaite que le gouvernement adopte des mesures concrètes qui visent à harmoniser les règlements municipaux au sein d’un même bassin versant. Il devrait, dans cet exercice, tenir compte des disparités économiques et territoriales et prévoir un soutien technique propre à l’application des règlements. Enfin, on devrait poursuivre par ces réglementations les objectifs énoncés dans les plans directeurs de l’eau.» (p.4)

3 - Grant governmental funding necessary for the realisation of water master plans. The source of funding should come from the fees paid for withdrawing water.

4 - Integrate the water master plans with the RCM Land Use Planning and Development Plan (see the Act respecting Land use planning and development).

8 - The Québec government should provide support to the municipalities and regional county municipality for the implementation of laws and regulations on water management.

9 & 16 - The government should review the criteria for the width of the riparian protection areas to limit phosphorous inputs.

12 - A financial support programme to help poorer segments of the population respect regulatory standards on sceptic tanks should be put in place by the government.

13 & 14 - The revision of the Regulation respecting waste water disposal systems for isolated dwellings should be prioritised with a view to increasing the phosphorous retention capacity of regulated sceptic tanks.

15 - The government should promote a sustainable model for agriculture that takes into account the water support capacity for phosphorous inputs. This recommendation is concomitant with decrees amending the farming insurance programme that push agriculture towards ever higher productivity.

New Right to Water website launched


On 10 december, WaterAid launched a new human rights to water and sanitation website. Some of the main pages of the site related to:

- The legal framework for the human rights to water and sanitation

- How to use the human rights-based approach (HRBA) in water developement

- Recent developments in international law with respects to the human rights to water and sanitation

The web site provides a good introduction to these issues. The site represents the HR advocacy position on the human right to water debate. For example, the site establishes the traditional dichotomy between States - governments, public officials, service providers - as duty bearers and citizens as rights holders. However, the site refers to the plurality of interpretations on what constitutes the HRBA to water (the History of a rights based approach to development section still seems under construction).

For a critical analysis on these issues, see «A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management (IWRM) and the Human Rights-Based Approach (HRBA) to Development».

A forthcoming book likely to provide significant substance on the reflection about HRBA and the rights to water is due to be published soon: Anna Russell & Malcolm Langford (eds), The Right to Water: Theory, Practice and Prospects (Cambridge: Cambridge University Press, 2011).

2011 Canadian Bar Association Conference on Water


The Canadian Bar Association 2011 National Environment, Energy and Resources Law Summit will focus on Water Law - Property, Protection and Policy. The Summit will be held on 7-9 April 2011, in Banff, Alberta. The annoucement for the Summit states:

«Join leading legal practitioners, academics and industry experts from across Canada and from the United States, South Africa and elsewhere, to discuss and understand the implications of differing domestic water allocation regimes on competing demands, the interplay between commercial development and water, the regulation and protection of natural water resources. Learn about the international concerns surrounding trade and the treatment of water as an export commodity, water in the Arctic, and trans-boundary water pollution. Develop insight into local and municipal issues such as restricted water use, pollution control legislation, drinking water delivery, watershed management and issues related to the development of Canada's water related infrastructure and the protection of Canada's drinking water supplies.»

The full details of the Summit are only available to attendees.

Greece accedes to the 1997 UN Convention on transboundary waters


Greece acceded to the Convention on the Law of the Non-Navigational Uses of International Watercourses on 2 December 2010 (see UN Treaty Collection Database). Greece has become the 21st country party to the Convention. According to article 36 of the Convention, it shall enter into force when 35 countries are party to it.

The WWF reports on the motivations behind Greece's decision. According to Tina Birbili, Greek Minister of Environment, Energy and Climate Change:

«The promotion of transboundary cooperation on water issues is inherent to Greece’s foreign policy, since around 25% of its surface water extends to or originates from neighbouring countries. The UN Watercourses Convention together with the EU Water Framework Directive constitute the necessary background and reference point for advancing the transboundary negotiations that Greece has initiated with Albania and the Former Yugoslav Republic of Macedonia, on the Prespa Lake; with Turkey, on the Evros basin; and with Bulgaria, on the Nestos, Strymon, Ardas, and Evros basins.»

In light of the above, 2 interesting points are: 1) the blurring of boundaries between international and national law through supranational law with the EU Water Framework Directive; 2) Greece's adherence to the principles of equitable and reasonable use as well as no harm for the management of transboundary waters with Turkey.

Turkey is principally an upstream state sharing waters with parched downstream neighbours in the Fertile Crescent. Turkey's position on transboundary waters is a traditional stance leaning towards the Harmon doctrine. Now, it seems that the principles of the 1997 Convention might be furthered against one of its prominent adversary due to the combination of Turkey's desire to join EU with water management reform in Greece under the WFD. Of note is the fact that Turkey is the state that required a vote on the 1997 UN Convention and voiced strong criticisms in UN plenary meeting at that time (Mr. Çelem, 21 May 1997):

«The draft Convention under consideration today is solely a framework Convention, as reaffirmed by General Assembly resolution A/51/206 and by draft resolution A/51/L.7, which is before us today. The mandate of the Sixth Committee to elaborate a framework convention was established very clearly by General Assembly resolution A/51/206. Accordingly, the draft Convention should have set forth only general principles and its application should have depended upon the drawing up of specific agreements which take into account the particular characteristics of the watercourses. In our view, neither the title nor the content of the draft Convention correspond to this provision of both resolutions.

In this respect, the draft Convention goes far beyond the scope of a framework convention and, in contradiction to its intent and nature, establishes a mechanism for planned measures. This has no basis in general and customary international law. Furthermore, this mechanism creates an obvious inequality between States by stipulating that, in order to implement its planned measures, a State belonging to a certain category is obliged to obtain the prior consent — tantamount to a veto right — of another State belonging to a certain other category.

It should also be stressed that it is not appropriate for a framework convention to foresee any compulsory rules regarding the settlement of disputes and not to leave this issue to the discretion of the concerned States. Furthermore, the draft Convention does not make any reference to the indisputable principle of the sovereignty of the watercourse States over the parts of international watercourses situated in their territory. The draft Convention should clearly have established the primacy of the fundamental principles of equitable and reasonable utilization over the obligation not to cause significant harm. The present text is liable to create confusion as far as implementation of the whole Convention is concerned.

In conclusion, my delegation would like to state that the Republic of Turkey does not intend to sign the Convention on the Non-Navigational Uses of International Watercourses and that this Convention does not and shall not have any legal effect for Turkey in terms of general and customary international law. For the reasons I have just explained, my delegation will vote against draft resolution A/51/L.72.

Sunday, December 12, 2010

The human right to water in Indonesia


Colleague Mova Al Afghani has recently uploaded on SSRN a paper on «The Potential Role of the Human Right to Water in the Management of Indonesia’s Water Resources». The paper argues that:

«there are gaps in the Indonesian legal framework in securing transparency, access to information, participation, access to justice and the procedure in recognizing customary rights in water resources management. Without adequate access to these procedural rights, vulnerable, marginalized and financially weaker groups will be left out from water resources management and will not be able to secure their entitlements. The Human Right to Water has potentials for filling such gap by reforming the implementing regulation of the Water Resources Law and enhancing the possibility to obtain legal recourse.»

A very interesting read, notably for the scope of the legal provisions considered in the analysis, as it provides an integrated legal perspective on the challenges and problems at ground level related to water for domestic consumption. Also interesting is section 5 on the role of the human right to water, and particularly subsection 5.b on the human right to water vs. cultural and customary rights, as well as subsection 5.f on the transposition of the International Covenant on Economic, Social and Cultural Rights in Indonesia.

One question that might be discussed a bit more is related to the interaction between the human right to water and other human rights. Reading the paper, it sometimes feels like the human right to water is constituted of a bundle of ‘substantive’ and ‘procedural’ rights (ex: see p.4 last §, as well as subsection 5.b on Right(s) to participation, transparency and access to information). Are these rights constituent human rights included under a human right to water? Are they considered as autonomous human rights? Is this an illustration of the doctrine of indivisible, inter-related and inter-dependent human rights?

Tuesday, December 7, 2010

Ontario aims at becoming the leading clean water jurisdiction in North America


On 29 November 2010, royal assent was given to the Ontario Water Opportunities and Water Conservation Act.

The purpose of the Act is: 1) to foster innovative water, wastewater and stormwater technologies, services and practices in the private and public sectors; 2) to create opportunities for economic development and clean-technology jobs in Ontario; 3) to conserve and sustain water resources for present and future generations.

The Act establishes the Water Technology Acceleration Project corporation to: 1) assist Ontario’s water and wastewater sectors by increasing their capacity to develop, test, demonstrate and commercialize innovative technologies and services for the treatment and management of water and wastewater; 2) assist Ontario’s water and wastewater sectors by increasing their capacity to expand their business opportunities nationally and internationally; 3) provide a forum for governments, the private sector and academic institutions to exchange information and ideas on how to make Ontario a leading jurisdiction in the development and commercialization of innovative technologies and services for the treatment and management of waterand wastewater.

Finally, the Act also: 1) requires that certain municipalities prepare, approve and submit municipal water sustainability plans for municipal water services, municipal wastewater services and municipal stormwater services under their jurisdiction; 2) authorises the making of regulations requiring public agencies including municipalities and ministries to prepare water conservation plans in order to achieve water conservation targets.

Two interesting indications on the direction of the development aimed at in the Act:

- The preamble states that «Ontario has already shown leadership by banning bulk transfers of water out of Ontario’s water basins and in safeguarding public water supplies from source to tap. A new way of thinking about conserving our water resources is needed in Ontario, one that builds on the critical linkages between economic prosperity and long-term environmental sustainability.»

- Subsection 1(2) states that «For greater certainty, the purposes of this Act do not include the privatization of publicly owned water, wastewater and stormwater services.»

This gives a good indication that Ontario intends to develop its water sector through high added value initiatives that have strong inter-sectoral traction effects: high tech, research and development and capacity building through education rather than primary extraction and profit funnelling to shareholders. Sounds nice.

A complete description of the Act is provided here by the Ontario Environmental Registry.

Monday, December 6, 2010

Asian Carp litigation: preliminary injuction dismissed - again


Another loss in a long series of lost battles: Steve Kellman reports for the Circle of Blue that a preliminary injunction to close the locks on the Chicago Canal to prevent Asian Carp entry in the Great Lakes has been rejected - again.

It's particularly interesting to see how the court attacks scientific evidence based on the eDNA tests because this method does not provide certainty as to the establishment of viable Carp communities beyond the Canal locks (see notably p.44 & ff. of the decision).

At an abstract level, there could be a parallel with the processes related to discrediting scientific evidence on human induced climate change. Prevention and precaution appear completely immaterial. We need to hit a wall at full speed to realise there's a problem and take action. We can only cross our fingers and hope the crash is not fatal.

Sunday, December 5, 2010

Water, death and human rights


A quote on the human right to water from a Canadian icon, found by chance:

«Go three days without water and you don't have any human rights. Why? Because you're dead.» Margaret Atwood, Observer Magazine, 28 November 2010, p.18 (online here)

Is this a justification for the human right to water? A fortiori, does the same justification apply to air? Should there be a human right to air? Is the emergence of new human rights absolutely good? Does it denote a more profound problem? On these issues, two interesting thoughts may further the reflection initiated here. According to Radha D’SOUZA, «Liberal Theory, Human Rights and Water-Justice: Back to Square One?» (2008) 1 Law, Social Justice & Global Development Journal at 9:

«What is missed by political theorists canvassing for human rights as a means of mitigating the problems of privatisation in the wake of ‘globalisation’ is the fact that the struggle for new rights come with recognition of new market prerogatives. The human right to water arises because water is brought into a private property regime in which it was not included before. What is at stake here is the entrenchment of water as part of a property regime.» [Here, property must not be understood as the legal artefact stricto sensu, as it refers to a political conception of social and economic regimes.] (link)

According to Costas DOUZINAS, «The End(s) of Human Rights» (2002) 26 Melbourne University Law Review 445 at 459:

«Both universal morality and cultural identity express different aspects of human experience. Their comparison in the abstract is futile and the differences between the two are not pronounced. When a state adopts ‘universal’ human rights, it will interpret and apply them, if at all, according to local procedures and moral principles, making the universal the handmaiden of the particular. The reverse is also true: even those legal systems which jealously guard traditional rights and cultural practices against the encroachment of the universal are already contaminated by it. All rights and principles, even if parochial in their content, share the universalising impetus of their form. In this sense, rights carry the seed of dissolution of community and the only defence is to resist the idea of rights altogether – something impossible in the global capitalist world.»

Friday, December 3, 2010

Confirmation of agreement on the management of Lake Champlain


A cooperation agreement on environmental matters regarding the management of Lake Champlain between New York, Vermont and Québec (the Agreement - French version here), signed in March 2010, was confirmed by governmental decree 918-2010 on 3 November 2010.

The Agreement is the latest in a series of agreements between the parties that date back to 1988. In 1990, the American Congress passed the Lake Champlain Special Designation Act (Public Law 101-596) leading to the creation of the Lake Champlain Basin Program, which is now implemented through the Opportunities for Action: An Evolving Plan for the Future of the Lake Champlain Basin (the French version of the Plan, dated 2003, provides details about related institutional and legal frameworks).

The Agreement confirms the role of the Lake Champlain Steering Committee in the cooperative management of the basin. The Steering Committee is notably mandated to implement the Plan and foster interactions between regulation and management programmes related to the monitoring of Lake Champlain (see section 2.6). The Agreement and the Plan recognise the ecosystem approach to basin management.