Adapting to Climate Change: a Study of International Rivers and Their Legal Arrangements*

Adapting to Climate Change: A Study of International Rivers and Their Legal Arrangements*

Gretta Goldenman**

INTRODUCTION As environmental problems increase in complexity and magnitude, nations are grappling with the legal and institutional arrangements needed to protect and manage natural resources. While local and national institutions may be adequate to address localized problems, resources shared by two or more nations require international arrangements if they are to be managed and protected for the long term. One of the major challenges ahead for the international community will be to develop the principles, procedures, and institutions for managing and protecting shared resources, such as watercourse systems, at the same time that the Earth adapts to climate change. If atmospheric carbon dioxide levels double by the year 2050, as scientists predict, the average surface temperature of the Earth could increase by two to nine degrees Fahrenheit.' As global temperatures rise, overall global rainfall is expected to increase.2 While scientists do not yet know precisely when

Copyright © 1990 by ECOLOGY LAW QUARTERLY * An earlier draft of this Comment received first prize in the 1990 Ellis J. Harmon Environmental Law Writing Competition. ** Legal Consultant, Commission of the European Communities, Directorate on the En- vironment, Brussels, Belgium; J.D. 1990, School of Law (Boalt Hall), University of California at Berkeley; M.P.P. 1989, Graduate School of Public Policy, University of California at Berke- ley; B.A. 1966, Pacific Lutheran University. The author acknowledges with thanks the support of the Pacific Institute for Studies in Development, Environment, and Security. 1. Stevens, With Cloudy Crystal Balls Scientists Race to Assess Global Warming N.Y. Times, Feb. 7, 1989, at Cl, col. 1. At 1985 and 1987 conferences sponsored by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP), scientists predicted an average warming from between 1.5 to 4.5 degrees Celsius before 2050 A.D. Houghton & Woodwell, Global Climatic Change, Sci. AM., Apr. 1989, at 36, 43. 2. The American Association for the Advancement of Science (AAAS) predicts a 7- 15% increase in average global precipitation. AAAS PANEL ON CLIMATIC VARIABILITY, CLI- MATE CHANGE AND THE PLANNING AND MANAGEMENT OF U.S. WATER RESOURCES: SUMMARY (1988) (Paul E. Waggoner & Roger R. Revelle, chairs) [hereinafter AAAS PANEL SUMMARY], reprinted in Implications of Global Warming for Nat. Resources: Oversight Hear- ings Before the Subcomm. on Water and Power Resources of the Comm. on Interiorand Insular Aff., 100th Cong., 2nd Sess. 568 (1988) [hereinafter Hearings]. ECOLOGY LAW QUARTERLY [Vol. 17:741

and where this rain will fall,3 they do know that where changes in precipitation occur, riverflows also change.4 Changes in riverflows will require adjustments in the management of those rivers and in water-dependent activities such as agriculture and navigation. These changes in riverfiows will come at a time when many rivers are already under severe environmental strain from the pressures of economic development and population growth. Dams and other hydrological works interrupt riverflows in order to store water and to harness kinetic energy for hydroelectric power.5 Downstream, fisheries decline and river deltas erode.6 Industrial facilities siphon off clean water and discharge pollutants. 7 Irrigation projects lead to increased agricultural productivity, but also cause waterlogging and increased soil salinity.8 Fragile ecosystems break down under the stress of pollution and reduced water. 9 Although evidence of adverse impacts from large-scale development of rivers is mounting, 10 dam projects and other development schemes are under discussion for most of the world's remaining free- flowing rivers.'" Climate-related changes will only increase the vulnerability of these river systems and heighten the need to protect them from a murky future. For nations with river basins wholly contained within their borders, responding to climate change and environmental degradation will be difficult enough. For the nations sharing the waters of the world's 214 international rivers, 12 the difficulty of determining how to cope with the

3. Gates, The Use of General Circulation Models in the Analysis of the Ecosystem Im- pacts of Climatic Change, 7 CLIMATIC CHANGE 267, 273 (1985). General circulation models (GCM's) are computer simulations of atmospheric and oceanic cycles. In addition to temperature, they can indicate large-scale distributions of humidity. Id. at 271. However, most GCM's cannot provide information on scales smaller than a few hundred kilometers and thus are unable to predict localized precipitation. Id. at 279. 4. In some areas riverflows will increase; in others, flows will diminish. The timing of seasonal peaks in riverflows might also change. See infra notes 19, 26-29 and accompanying text. 5. For a discussion of how large dams inundate upstream lands, lessen downstream fertility by stopping the flow of nutrient-rich silt, lose large amounts of water to evaporation, interrupt fisheries, and contribute to the spread of pests and disease, see generally E. GOLD- SMITH & N. HILDYARD, THE SOCIAL AND ENVIRONMENTAL EFFECTS OF LARGE DAMS (1984). 6. Williams, Damming the World, 13 NOT MAN APART 10, 10-11 (1983). 7. See E. GOLDSMITH & N. HILDYARD, supra note 5, at 215. 8. Id. at 136-37. 9. See Williams, supra note 6, at 10. 10. See E. GOLDSMITH & N. HILDYARD, supra note 5, at 14-15. In addition to being environmentally costly, the social costs may outweigh overall economic benefits for many nations because the benefits of such developments flow predominantly to urban areas and the ruling elite. See id. at 264-76. 11. Most large dams in the world have been completed within the last two decades. Id. at 2. 12. U.N. DEP'T OF ECONOMIC AND SOCIAL AFFAIRS, REGISTER OF INTERNATIONAL RIVERS 3 (1978). River basins shared by two or more nations cover almost half (47%) of the 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 743 effects of altered riverfiows will be magnified in proportion to the number of basin states involved. Conflicting demands over scarce natural resources may strain delicate geopolitical balances to the breaking point.' 3 Yet international mechanisms for the governance and environmental protection of shared resources are immature. While scientists and policy analysts are working to ascertain the extent of climate change and its ecological and human impacts, little attention has been paid to the legal arrangements needed for orderly adaptation to a changed environment. Some adaptation will be required, however, for even if releases of greenhouse gases were stopped immediately, some climate changes will occur from gases already in the atmosphere. 14 This Comment looks at the legal and institutional arrangements among nations sharing international rivers to assess what can be done now to develop peaceful, equitable, and cooperative ways of accommodating and mitigating the impacts of climate change on river systems. Section I analyzes how climate change may affect rivers and identifies a number of water management issues that may arise, as well as 'several institutional arrangements that governments might utilize to manage water-related problems. Section II examines three international rivers - the Nile, the Ganges, and the Colorado - to assess the capacity of their existing legal regimes to adapt to climate change. Section III explores whether other sources of international law can fill in the gaps where treaty provisions are insufficient to guide the allocation, management, and protection of shared rivers. Section IV applies these other sources of international law to the climate-related water management issues and international water management institutions identified earlier to assess the adequacy of international law for adapting to alterations in international riverfiows caused by climate change.

ANTICIPATED IMPACT OF CLIMATE CHANGE ON INTERNATIONAL RIVERS AND THEIR MANAGEMENT How fast the Earth will heat up in the decades ahead - and how much - is uncertain. '5 Scientists agree that the rise in average tempera-

Earth's land area. Id. 13. See generally THE POLITICS OF SCARCITY: WATER IN THE MIDDLE EAST (J. Starr & D. Stoll eds. 1988); Cooley, The War Over Water, 54 FOREIGN POL'Y 3 (1984); Gleick, The Implicationsof Global Climatic Changesfor InternationalSecurity, 15 CLIMATIC CHANGE 309 (1989); Where Dams Can Cause Wars, ECONOMIST, July 18, 1987, at 37. 14. See Is It All Just Hot Air?, NEWSWEEK, Nov. 20, 1989, at 64; Schneider, The Chang- ing Climate, Sci. AM., Sept. 1989, at 70, 76. 15. For a general discussion about the scientific uncertainty regarding the scope of climate change, see Schneider, supra note 14, at 70. For example, greenhouse gases are predicted to reach twice their current levels by the year 2030. Predictions about how much the Earth ECOLOGY LAW QUARTERLY [Vol. 17:741 tures will affect different regions in varying ways, but they cannot predict how specific regions of the Earth will be affected. 16 General circulation models (GCM's) - highly sophisticated three-dimensional computer models integrating such data as temperature, humidity, wind, soil moisture, and other variables17 - indicate that the largest increases in temperature will occur in the higher northern and southern latitudes during 18 their winters. The warmer temperatures expected to occur will have a number of ramifications. For middle and northern latitudes, warmer temperatures will bring about earlier snowmelts and spring runoffs. 19 Warmer temperatures will also mean greater use of air conditioning and electric fans, thus increasing demand for power, including hydroelectricity. 20 Warmer temperatures will affect what crops can be grown in a region, which will 21 alter in turn the timing and amount of water demand. Climate change will also affect rainfall. Some areas will receive sig- nificantly less rainfall than they do today; others will receive more.22 The seasons of rainfall may change. 23 If alterations in rainfall patterns are will warm by then range from 3.4 degrees Fahrenheit to an "apocalyptic" 9.9 degrees Fahren- heit. Is It All Just Hot Air?, supra note 14, at 64. 16. See Smith, How it Might Be: Water Resources, 15 EPA J. 19, 19 (1989). 17. S. SCHNEIDER, GLOBAL WARMING: ARE WE ENTERING THE GREENHOUSE CEN- TURY? 96 (1989). For an explanation of GCM's and how they are used to make long-term weather forecasts, see Gates, supra note 3, at 268. 18. Gates, supra note 3, at 268. Stephen Schneider predicts wetter subtropical rain belts, longer growing seasons in high latitudes, wetter springtimes in high and middle latitudes, drier summers for some middle latitude areas, an increased probability of extreme heat waves, and a lower probability of extreme cold snaps. Hearings, supra note 2, at 30. The middle latitudes include most of the North American continent as well as all of Europe, northern Asia, southern Africa, and southern South America. See Woodwell, The Warming of the Industrialized Middle Latitudes 1985-2050: Causes and Consequences, 15 CLIMATIC CHANGE 31, 38 (1989). 19. Hearings, supra note 2, at 126 (statement of Dr. Daniel J. Dudek, Environmental Defense Fund). 20. Linder, How It May Be: Electricity Demand, 15 EPA J. 17, 18 (1989). 21. See Crosson, Climate Change and Mid-Latitudes Agriculture: Perspectives on Conse- quences and Policy Responses, 15 CLIMATIC CHANGE 51, 59-63 (1989). 22. Hearings, supra note 2, at 226 (statement of John Harte, Energy and Resources Group, University of California, Berkeley) ("IT]here will be changes in precipitation, possibly by as much as 10 or 20 percent."). For example, several climate models predict declines in summer rainfall in midcontinental areas, such as the central plains of the United States. Schneider, supra note 14, at 77. Some simulations have indicated increases of up to 60% in average annual runoff for latitudes between 40 and 60 degrees, if concentrations of carbon dioxide double from current levels. Williams, Adapting Water Resources Management to Global Climate Change, 15 CLIMATIC CHANGE 83, 84 (1989). 23. Hearings, supra note 2, at 126 (statement of Dr. Daniel J. Dudek, Environmental Defense Fund). Warmer winters and springs would mean reduced snowpacks, more winter rain, and earlier spring runoffs. Id. However, climate models indicate that in the Pacific Northwest, increased precipitation will occur in the winter, already the wettest season. Wil- liams, supra note 22, at 84-85. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 745

substantial, the result could be large-scale disruptions of ecosystems, 24 as 25 well as of agricultural productivity and other human activities. Changes in precipitation will in turn directly affect riverflows. More rainfall will lead to higher riverflows and lake levels and will increase the likelihood of downstream flooding. Current reservoirs and flood-control structures may not be able to deal with additional quantities of water.26 Decreased precipitation will present even graver problems. 27 Navigabil- ity of rivers may be affected, necessitating costly dredging of shipping channels.28 Wetlands and other riverine ecosystems will be altered, affecting fish and wildlife.29 Changes in riverflows will also affect water quality. Increased riverflows will improve water quality by increasing the dilution of pollutants. Lower riverflows and lake levels may cause a decline in water quality as pollution becomes concentrated. 30 In either case, nations sharing a river will have to decide the extent to which they will maintain riverine water quality, whether by protecting shared river waters from discharges of pollutants, requiring minimum waterflows in rivers, or adopting other protective measures. In addition, riverine ecosystems will be affected by climate-change- induced alterations of the biosphere. 31 Distribution and composition of

24. See generally Woodwell, supra note 18 (predicting massive diebacks of forests because climate will change faster than long-living species can adapt). Using a moderate climate model, one scientist predicted that forests and animals will have to move northward or south- ward six miles a year in order to maintain the same climate around them. Hearings, supra note 2, at 227 (statement of John Harte, Energy and Resources Group, University of California, Berkeley). 25. For example, declines in summer precipitation in the American Midwest, see supra note 22, along with warmer temperatures, are predicted to lead to "pronounced mid-continen- tal summer dryness and severely reduced soil moisture." Hearings, supra note 2, at 126 (statement of Dr. Daniel J. Dudek, Environmental Defense Fund). The result would be a loss of productivity by American agriculture with "the viable acreage in arid regions of the western states and the Great Plains [falling] by a third." Schneider, supra note 14, at 77; see also Rind, A Character Sketch of Greenhouse, 15 EPA J. 4, 6 (1989) (discussing harmful effects that disrupted rainfall patterns could have on agricultural and economic productivity). 26. See Williams, supra note 22, at 88; see also Hearings, supra note 2, at 126 (statement of Dr. Daniel J. Dudek, Environmental Defense Fund) ("Since water projects are constructed to conform to a specific hydrologic regime, many facilities will be improperly sized."). 27. Drops in precipitation will lead to declines in runoff. Hydropower generation could decrease, along with the navigability of rivers, and water quality could decline. Hearings, supra note 2, at 109 (statement of John Dracup, Civil Engineering Department, University of California, Los Angeles). The problem will be most grave in drier areas. In the Colorado River Basin, a 10% decrease in precipitation along with a two degree Celsius temperature rise could decrease annual runoff by 30%. Williams, supra note 22, at 84. 28. Smith, supra note 16, at 20. 29. Henderson, How it Might Be: Species, 15 EPA J. 21, 22 (1989). 30. Smith, supra note 16, at 20; see also Hearings, supra note 2, at 580 (AAAS PANEL SUMMARY). The most vulnerable rivers will be those with low flows and highly seasonal runoffs. Williams, supra note 22, at 89. 31. See Mabbutt, Impacts of Carbon Dioxide Warming on Climate and Man in the Semi- Arid Tropics, 15 CLIMATIC CHANGE 191 (1989); Woodwell, supra note 18, at 40-44. ECOLOGY LAW QUARTERLY [Vol. 17:741 the world's biological systems are strongly influenced by climate. Many plant and animal species may not be able to adapt quickly enough to survive shifts in temperature and rainfall.32 For example, many species of trees are highly vulnerable to climate change, and forest dieback may occur. 33 Loss of forest can cause watershed soils to absorb less rainfall, resulting in more runoff and soil erosion. 34 Altered riverfiows may mean loss of habitat for plant and wildlife species. Warmer temperatures in lakes and rivers can increase the growth of algae and other aquatic plants, reducing dissolved oxygen levels and harming fish and other crea- tures. 35 Thus, maintenance of river ecosystems will become a pressing river management issue. Guaranteed minimum riverflows, protection for watersheds, and other environmental protection measures may become necessary in order to preserve aquatic and terrestrial biota. Finally, as the Earth warms, sea levels are expected to rise from 1.5 feet to 5 feet over the next 50 to 100 years.36 Even a small rise in sea level would inundate estuarine wetlands, accelerate erosion of low-lying river deltas, increase the salinity of rivers, bays, and aquifers, and exacer- bate flooding.37 Rising sea levels will harm the species dependent upon these wetlands for survival, including mollusks, waterfowl, and the many species of fish and other wildlife which use such wetlands as nurseries. 38 Storm surges could drive already high sea levels even higher against 39 coastlines and river mouths, bringing about catastrophic flooding. Consequently, those nations situated where an international river meets the sea - already geographically disadvantaged by virtue of their downstream position 4 - will also be beleaguered by a rising sea. The difficulty of distinguishing long-term climate-related changes from normal weather variability will complicate efforts to respond to cli-

32. Woodwell, supra note 18, at 41. 33. Winjum & Neilson, How It Might Be: Forests, 15 EPA J. 11, 11 (1989); see E. NORSE, ANCIENT FORESTS OF THE PACIFIC NORTHWEST 25-26 (1990) (discussing sensitivity to climate change of old-growth forests in the Pacific Northwest). For instance, forests stressed by extreme weather are more susceptible to other disturbances, such as insect damage and wildfire. Winjum & Neilson, supra, at 11. 34. See Williams, supra note 22, at 85. 35. Smith, supra note 16, at 20; see Hearings,supra note 2, at 334-35 (testimony of Dr. Alec C. MacCall, Tiburon Laboratory, National Marine Fisheries Service) (describing deterio- ration of inland and estuarine fisheries from global warming). 36. The rising sea levels will come from expansion of water in the oceans and from the melting of glaciers and the Greenland and Antarctic ice caps. S. SCHNEIDER, supra note 17, at 159-65. But see Caron, When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level, 17 ECOLOGY L.Q. 621, 626 (1990) (temperature rise expected to be insufficient to cause significant melting of Antarctic ice). 37. Hearings,supra note 2, at 414-15 (statement of Richard Morgentern, Office of Policy Analysis, U.S. Environmental Protection Agency); see Vellinga & Leatherman, Sea Level Rise, Consequences and Policies, 15 CLIMATIC CHANGE 175 (1989). 38. Henderson, supra note 29, at 22. 39. Titus, How It Might Be: Sea Levels, 15 EPA J. 14, 14 (1989). 40. See infra notes 52-55 and accompanying text. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 747 mate change.41 While short-term impacts due to weather variability can be accommodated through temporary measures, climate-related changes might necessitate overall adjustments in water management arrangements. 42 Yet, existing water management systems - designed under the assumption that climate was constant - often accommodate only short- term fluctuations in weather.4 3 For example, if a decrease in rainfall is first considered a short-term drought, cobasin nations might decide to draw down reservoirs or take other temporary measures, instead of setting in place the permanent cutbacks in water consumption needed to deal with long-term climate change. By the time permanent climate change is identified, current water management systems may be obsolete, with no mechanisms in place to deal with the new conditions." The uncertainty involved in detecting such long-term change might delay actions necessary to bolster the flexibility of water management systems. In sum, climate change will require nations to resolve a range of water management issues with profound economic, social, and political ramifications. 45 Water allocations may have to be renegotiated. If water shortages develop, nations will have to decide how to apportion cutbacks in allocations. Should water be reserved for irrigation or for municipal use? What about industrial needs and demand for hydroelectric power? And how much protection in the form of minimal riverflows should fish, wildlife, and riverine ecosystems receive? If surpluses occur, nations can consider how to share the additional waters, but other problems may arise, such as a need for more flood control measures. Some of the water management issues that could arise with or be exacerbated by climate change include: (1) Water allocation, including allocation of shortages and surpluses; (2) Water quality; (3) Maintenance of minimum riverflows to aid ecosystem protection; (4) Protection of riverine ecosystems; and (5) Flood control measures. In order to accommodate and resolve problems like these, adequate and flexible institutional arrangements will have to be in place for managing shared rivers. A list of the arrangements likely to be needed includes: (1) Sharing of data between nations; (2) Dispute settlement procedures;

41. See Chen, Climate and Climate Impacts, in WORLD CLIMATE CHANGE: THE ROLE OF INTERNATIONAL LAW AND INSTITUTIONS 18 (V. Nanda ed. 1983) [hereinafter WORLD CLIMATE]. 42. See Gleick, The Effects of Future Climatic Changeson InternationalWater Resources: The Colorado River, the United States; and Mexico, 21 POL'Y Scd. 23, 32 (1988). 43. Id. 44. Id. 45. For discussions of water management issues that will arise with climate change, see Riebsame, Adjusting Water Resources Management to Climate Change, 13 CLIMATIC CHANGE 69 (1988); Williams, supra note 22. ECOLOGY LAW QUARTERLY [Vol. 17:741 (3) Procedures for amendment or adjustment; and (4) Joint basin development and management structures. These water management issues and institutional arrangements will be explored throughout the remainder of this Comment. They guide its analysis of individual river arrangements as well as the more general discussion of the adequacy of current legal arrangements to adapt to rapid climate change. The next section explores the capacity of existing legal and institutional arrangements for three international rivers - the Nile, the Ganges, and the Colorado - to successfully accommodate water management problems related to climate change and to protect riverine ecosystems from environmental degradation. Later sections look at customary principles of international law and at the evolution of international river organizations and other legal arrangements.

II THREE INTERNATIONAL RIVERS: CAN THEIR TREATIES ACCOMODATE CLIMATE CHANGE? Under classical notions of international law, nations are bound most strongly by what they themselves agree to do.46 Under this consent- based model of international law, legal principles are best derived from the formal promises states make to each other, and from their actual practices towards each other.47 The most authoritative sources for determining what nations have agreed to do are treaties and conventions.48 If properly drafted, a treaty - like a contract - can provide legally binding rules and principles.49 Most international rivers are under the control of at least one bilateral or multilateral river agreement. 50 These treaties are generally tai- lored to the unique geographical and political characteristics of the particular river they cover. Often they rest on extensive data collected

46. M. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 5 (1988). 47. Id. 48. Article 38, paragraph 1 of the Statute of the International Court of Justice lists the order of authorities for international law as follows: (a) international conventions ... establishing rules expressly recognized by the con- testing States; (b) international custom as evidence of a general practice accepted by law; (c) the general principles of law recognized by civilized nations; (d) ... judicial decisions and the teachings of the most highly qualified publicists... as subsidiary means for determination of the rules of law. Statute of the Court, art. 38, 1978 I.C.J. Acts & Docs. No. 4, at 77. 49. M. JANIS, supra note 46, at 4. 50. For listings of over 2000 river agreements and cases dating back to the time of Charlemagne, see 1 U.N. FOOD AND AGRICULTURE ORGANIZATION, LEGISLATIVE STUDY No. 15, SYSTEMATIC INDEX OF INTERNATIONAL WATER RESOURCES TREATIES, DECLARA- TIONS, ACTS, AND CASES, BY BASIN (1978); 2 U.N. FOOD AND AGRICULTURE ORGANIZA- TION, LEGISLATIVE STUDY No. 34, SYSTEMATIC INDEX OF INTERNATIONAL WATER RESOURCES TREATIES, DECLARATIONS, ACTS, AND CASES, BY BASIN (1984). 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 749 over time, and they often have required years and even decades to negotiate. 51 Such agreements usually involve complicated tradeoffs not necessarily embedded in the text of the treaties themselves. The three international rivers examined in this section were selected for the range of geographical, political, and legal issues they present. The Nile has long been dominated by powerful downstream Egypt, but today the development plans of its weaker upstream neighbors threaten Egypt's control over the water it needs. 52 The Ganges illustrates the difficulties a weak downstream nation like Bangladesh may have when a stronger upstream nation takes unilateral actions threatening riverflow. 53 The Colo- rado River is also dominated by a powerful upstream nation, yet the United States has shown responsiveness to concerns raised by downstream Mexico. 54 Each river system is already facing conditions of water scarcity. They share the risk of seeing already scarce water resources become even more scarce as a result of climate change.55 In combina- tion, these rivers provide insight into how international river agreements and contracting nations might accommodate climate change. Each case study provides a brief geographical, historical, and political overview in order to give context to the geopolitical forces underlying a particular river agreement. A major treaty for each river is then analyzed to determine whether its provisions provide adequate guidance for resolving the water management issues identified earlier as being related to climate change.5 6 Finally, the section looks at the institutions and procedures each treaty sets in place to assess their capacity for making adjustments to changing conditions and for ensuring some protection for the river's environmental quality.

A. The Nile River Basin The Nile, considered the longest river in the world, snakes 6825 kilometers (4200 miles) from Tanzania to the Mediterranean Sea. 57 Nine states share its basin,58 ranging from Egypt, one of the largest military

51. Hearings, supra note 2, at 7 (statement of Jessica Matthews, World Resources Institute). 52. See infra notes 64-84 and accompanying text. 53. See infra notes 118-52 and accompanying text. 54. See infra notes 194-201 and accompanying text. 55. The three international rivers explored in this Comment are also similar in that they flow through the nations sharing their basins in succession. This Comment does not examine the particular political problems presented by an international river which forms a border between two nations. 56. See supra notes 45-46 and accompanying text. 57. J. WATERBURY, HYDROPOLITICS OF THE NILE VALLEY 13-14 (1979). The Nile drains one-tenth of Africa's land area and its drainage basin covers nearly 3.1 million square kilometers. Id. at 14. 58. Egypt, the Sudan, Ethiopia, Kenya, Tanzania, Burundi, Rwanda, Uganda, and Zaire. ECOLOGY LAW QUARTERLY [Vol. 17:741 and economic powers in the Arab world, to some of sub-Saharan Africa's newest, most poverty-mired nations. 59 Nine years of consecutive drought, relieved only by abundant rains in 1988, recently dramatized the vulnerability of the Nile's riparian states to climatic change. 6° Two major tributaries form the Nile. The White Nile starts in Cen- tral Africa's Lake Plateau region, with Lake Victoria its principal source. It passes through Uganda and then into the Sudan, where it empties into a giant swamp known as the Sudd ("the barrier") and loses half of its waters to evaporation.61 When the White Nile reaches Khartoum, the capital of the Sudan, the Blue Nile, emerging from Ethiopia, joins in. More than eighty percent of the Nile's overall outflow comes from the torrential monsoon rains that drench the Ethiopian highlands. 62 Except for the seasonal flows of the Atbara River, also originating in Ethiopia, the Nile receives no additional water over its remaining 3000 kilometer 63 course to the sea. Until recent years, downstream Egypt had little competition for the Nile's natural flow because no upstream nation had developed irrigation or industrial uses.64 Egyptians viewed its waters almost as an entitle- ment. 65 For example, most Egyptian farmers still use wasteful inundation methods to irrigate their fields.66 In addition, after construction of

59. M. FALKENMARK & G. LINDH, WATER FOR A STARVING WORLD 63 (1976). 60. See Egypt to Grow More Rice and Cotton (Xinhua General Overseas News Service, Oct. 30, 1988) (available on NEXIS, Omni library) [hereinafter Rice and Cotton]. 61. The lakes and the Sudd serve as year-round storage basins, so that the White Nile releases its annual 14 billion cubic meters (BCM) throughout the year. WATER IN THE MID- DLE EAST: CONFLICT OR COOPERATION? 128 (T. Naff & R. Matson eds. 1984). 62. J. Starr & D. Stoll, Climate Change and U.S. Foreign Policy Options in the Upper Nile River Basin 4 (Jan. 5, 1988) (unpublished paper for Strategic Planning Seminar on the Long-Term Implications of Climatic Change, National Academy of Sciences). During the July to October flood months, the Blue Nile carries the bulk of its 48 BCM annual flow. See WATER IN THE MIDDLE EAST: CONFLICT OR COOPERATION?, supra note 61, at 128. 63. The Nile's average yield during the years 1900-1959 was 84.5 million cubic kilometers (MCK). J. WATERBURY, supra note 57, at 21. But this can vary dramatically. Total discharge in 1878-1879 was 150 MCK, while 1913-1914 discharge was only 42 MCK. Id. at 22. 64. See Starr, Egypt is African and its PrincipalProblem is Water, Int'l Herald Tribune, Feb. 22, 1985, at 8, col. 1. 65. A commonly held notion among Egyptian farmers is that water, like air, is a gift from God, and is not to be interfered with by government authorities. J. WATERBURY, supra note 57, at 222-23. The Egyptian government has also acted proprietarily towards the Nile's waters. On occasion, it has explicitly reserved its right to forcefully intervene should its water interests come under threat from another state. Id. at 5. In 1978, for instance, the late Presi- dent Anwar Sadat reportedly said that Egypt would not accept any interference with the flow of the water of the Blue Nile, particularly if Ethiopia's announced plans to interfere with its flow had political motivations. Okidi, The State and the Management of InternationalDrain- age Basins in Africa, 28 NAT. RESOURCES J. 645, 654 (1988). 66. Inundation irrigation, also called basin irrigation, involves channeling water into a field until the field is flooded. See J. WATERBURY, supra note 57, at 27-29. This type of irrigation requires no costly specialized equipment, but it is expensive in terms of the amount of water wasted. For a general discussion of wasteful watering practices in Egypt, see id. at 19901 INTERNATIONAL RIVERS AND CLIMATE CHANGE 751 the Aswan High Dam in the 1960's, the Egyptian government undertook 67 ambitious land reclamation projects, increasing demand for Nile water. Now, however, Egypt is acutely aware of the limits of the Nile's supply. With a rapidly growing population - now fifty million people and expected to reach sixty-eight million by the year 2000 - packed into the Nile's narrow floodplain, Egypt must ensure the continuity of the Nile's water resources as well as maintain agricultural productivity. 6 "The next war in our region will be over the waters of the Nile, not 69 politics," said Egypt's minister of foreign affairs in a 1985 interview. The Aswan High Dam, located in Egypt and completed in 1970, has provided Egypt with over-year storage and has generally mitigated the effects of drought, 70 but its benefits have also brought severe environmental impacts. Evaporation and seepage losses from the dam's reservoir come to more than half of Egypt's incremental gain from constructing the dam.71 Perennial irrigation has spread schistosomiasis, a debilitating parasite carried by snails living around the canals. 72 Soil fertility is de- clining because flood-borne silt no longer covers Egypt's fields annually and because soil salinity from inadequate drainage is increasing.73 The 74 Nile Delta, built over the millennia by silt deposition, is eroding.

220-22. On the other hand, more efficient irrigation systems using sprinklers or drip systems are prohibitively expensive for most Egyptian farmers. Egyptian farmers pay only small pumping charges for the water they use. Some commentators suggest that if farmers had to pay more for the water they used, they would be less wasteful. See, e.g., Starr, Water Clock Ticking For People of the Nile, Int'l Herald Tribune, June 11, 1986, at 14, col. 1 (any Egyptian can draw as much water as desired if "meager" pumping price paid). But see Smith, Drought and Water Management: The Egyptian Re- sponse, 41 J. SOIL & WATER CONSERVATION 297, 300 (1986) ("Egypt has always practiced fairly strict water conservation."). 67. B. GODANA, AFRICA'S SHARED WATER RESOURCES: LEGAL AND INSTITUTIONAL ASPECTS OF THE NILE, NIGER, AND SENEGAL RIVER SYSTEMS 198 (1985). Egypt even began transporting Nile waters via canal out of the African continent to the Sinai peninsula. Id. 68. Starr, supra note 64, at 8, col. 1. 69. Id; see also Where Dams Can Cause Wars, supra note 13, at 37 ("The next war in the Middle East could be fought not over oil, the region's most plentiful resource, but over water, its scarcest."). 70. J. WATERBURY, supra note 57, at 40. In 1984, Egyptian officials praised the Aswan High Dam for saving the country from the drought crippling Ethiopia and other African countries. High Dam on Nile Saves Egypt, Sudan from Drought (Xinhua General Overseas News Service, Nov. 19, 1984) (available on NEXIS, Omni Library). 71. J. WATERBURY, supra note 57, at 125. 72. Id. at 146-47. 73. Id. at 129-34. 74. One million people now live in areas of the Nile Delta likely to be eroded or flooded by the year 2100. FloodingEndangers Nile Delta. Expert Says, N.Y. Times, Apr. 26, 1988, § 3, at 11, col. 1. While land subsidence and erosion is not new to the Nile Delta, the sediments that washed down during the annual Nile floods used to replace lost delta lands. Since the closing of the Aswan High Dam, the flows of sediment have instead collected behind the dam in Lake Nassar. Id; see Kashef, Technical and Ecological Impacts of the High Aswan Dam, 53 J. HYDROLOGY 73, 78-79 (1981). ECOLOGY LAW QUARTERLY [Vol. 17:741

The nine-year drought of the 1980's75 dropped the Nile's water levels to the lowest in recorded history.76 The Egyptian government began taking extreme conservation measures, reducing crop planting areas and threatening to close down the Aswan High Dam's hydroelectric power station to save water for irrigation.7 Fortunately, heavy rains and floods in Ethiopia and the Sudan in 1988 raised water levels again. 78 Growing upstream demand for the Nile's waters is increasing Egypt's vulnerability. The Sudan, with sixteen million people, desires more water to develop its potential to become a breadbasket for both Africa and the Middle East.79 Ethiopia also has designs on the Nile and has announced it reserves the right to unilaterally develop the Blue Nile and other Nile tributaries originating in its highlands.80 Prior to its civil war, Ethiopia had planned projects to irrigate some 4.5 million acres and 81 to generate hydroelectric power. The Lake Victoria basin states are also considering ambitious water development plans that could affect downstream supplies.8 2 Kenya and Tanzania are eyeing Lake Victoria's waters for irrigation projects.8 3 In addition, Burundi, Rwanda, Tanzania, and Uganda have formed the Kagera River Basin Organization to develop Lake Victoria's primary contributor.4

75. Rice and Cotton, supra note 60. 76. Ross, ParchedEgypt Watches Anxiously as Waters Behind Aswan Dam Recede, L.A. Times, Dec. 26, 1987, § 1, at 20, col. 1. 77. Id. 78. Rice and Cotton, supra note 60. 79. Exacerbating this desire is the fact that the Sudan is currently experiencing a severe drought. See Perlez, U.S. Bars New Aid in a Sudan Famine, N.Y. Times, Oct. 3, 1990, at Al, col. 1. In addition, the Sudan is also in the midst of a civil war. See id 80. In 1978, when the Sudan and Egypt expressed concern about studies that Soviet experts were conducting on exploiting the Blue Nile, Ethiopia's Ministry of Foreign Affairs issued a statement declaring that Ethiopia asserted and reserved for its own use "all the rights to exploit her natural resources." B. GODANA, supra note 67, at 35-36. The statement reportedly pointed out that Egypt had built the Aswan High Dam, largely dependent on waters originating from the Blue Nile, without consulting Ethiopia. Okidi, Review of Treaties on Consumptive Utilization of Waters of Lake Victoria and Nile DrainageSystem, 22 NAT. RESOURCES J. 161, 193 (1982). 81. J. WATERBURY, supra note 57, at 238. 82. Only 16% of the Nile's flow reaching the Aswan High Dam comes from the White Nile, but this is important year-round flow. Okidi, Legal and Policy Regime of Lake Victoria and Nile Basins, 20 INDIAN J. INT'L L. 395, 398-99 (1980). 83. Id. at 441,445. 84. See Lwehabura, Co-operation in the Management and Development of the Kagera River Basin, in U.N. DEP'T OF TECHNICAL CO-OPERATION FOR DEVELOPMENT, EXPER- IENCES IN THE DEVELOPMENT AND MANAGEMENT OF INTERNATIONAL RIVER AND LAKE BASINS at 175-76, U.N. Doc. ST/ESA/120, U.N. Sales No. E.82.II.A.17 (1983) (Proceedings of the U.N. Interregional Meeting of International River Organizations, Dakar, Senegal, May 5-14, 1981). The Kagera River Basin Organization is a particularly innovative and ambitious joint venture, in that it was formed not only to manage joint water development but also to undertake tourism, transportation, and other economic development projects. Id. at 176. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 753

Lack of resources for development as well as political disarray among upstream states works to Egypt's advantage.8 5 For example, Ethiopia has been consumed by its own civil war and has not had the 8 6 finances to go ahead with its proposed water management project. Should these upstream countries find financing and expertise, however, their development plans will increase demand for the Nile's waters, as well as the need to manage the river cooperatively. Formal cooperation among Nile basin states regarding the development and management of the Nile remains limited. The most prominent legal instrument in place is the 1959 Nile Waters Agreement between Egypt and the Sudan.8 7 While a number of other limited agreements are also in force,88 there is no comprehensive agreement among all of the Nile basin states.8 9 The 1959 Nile Waters Agreement was negotiated after Egypt had announced its plans to build the Aswan High Dam. 90 Its stated purpose is to "[r]egulate the River waters and regulate their flow into the

85. Interview with John Waterbury, William Stewart Tod Professor of Politics and Inter- national Affairs, Woodrow Wilson School of Public and International Affairs, Princeton Uni- versity (Mar. 21, 1989) [hereinafter Waterbury Interview]. For example, Uganda, a fertile country traversed by the upper White Nile, is prime land for irrigation, but its poverty and political disarray makes any development scheme unlikely in the near future. Id. See generally Kapuscinski, Uganda: After the Terror, N.Y. Times, Mar. 12, 1989, § 6 (Magazine), at 38 (describing turmoil and disarray of the political and social structure of Uganda following the dictatorial reigns of Milton Obote, Idi Amin, and General Tito Okello). 86. Where Dams Can Cause Wars, supra note 13, at 37. The Soviet Union is reportedly considering backing the construction of two Blue Nile dams for Ethiopia. Interview with Pro- fessor Robert Holz, Dept. of Geography, University of Texas, Austin (Apr. 27, 1989). 87. Agreement on the Full Utilization of the Nile Waters, Nov. 8, 1959, Egypt-Sudan, 453 U.N.T.S. 51 [hereinafter 1959 Nile Agreement], reprinted in LEGISLATIVE TEXTS AND TREATY PROVISIONS CONCERNING THE UTILIZATION OF INTERNATIONAL RIVERS FOR OTHER PURPOSES THAN NAVIGATION at 143-49, U.N. Doc. ST/LEG/SER.B/12, U.N. Sales No. 63.V.4 (1963) [hereinafter LEGISLATIVE TEXTS]. 88. Other treaties governing aspects of the Nile include: (1) Exchange of Notes in regard to the Use of the Waters of the River Nile for Irrigation Purposes, Nov. 7, 1929, Egypt-Great Britain (acting for the Sudan), 93 L.N.T.S. 43; (2) Exchanges of Notes Constituting an Agree- ment Regarding the Construction of the Owen Falls Dam in Uganda, May 30-31, Dec. 5, 1949, July 16, 1952, and Jan. 5, 1953, Egypt-Great Britain (acting for Uganda), 207 U.N.T.S. 277, 226 U.N.T.S. 273; and (3) Agreement for the Establishment of the Organization for the Management and Development of the Kagera River Basin, Aug. 24, 1977, Rwanda-Burundi- Tanzania, 1089 U.N.T.S. 165. In addition, a number of colonial-era agreements between the European administrators of African countries provide historical background. See Okidi, supra note 82, at 410-24. 89. However, the Nile basin states are cooperating with a years-long information-gathering effort sponsored by the World Meteorological Organization. Krishna, The Legal Regime of the Nile River Basin, in THE POLITICS OF SCARCITY: WATER IN THE MIDDLE EAST 23, 30- 31 (J. Starr & D. Stoll eds. 1988). In addition, the United Nations Development Programme convened a workshop for Nile Basin countries in Bangkok in January 1986 to consider ways of strengthening cooperation and effective planning among Nile riparian nations. Id. at 35-36. 90. Watt, The High Dam at Aswan and the Politics of Control, in DAMS IN AFRICA 106, 112-13, 121-23 (N. Rubin & W. Warren eds. 1968). ECOLOGY LAW QUARTERLY [Vol. 17:741

sea ... ."91 The treaty fixed the amounts of Nile water regarded as the "established" rights of Egypt and the Sudan. 92 It specified what the net benefits from the Aswan High Dam were expected to be, and how those benefits were to be shared.93 Egypt agreed to compensate the Sudan for flooding Sudanese territory as a result of filling the Aswan High Dam's reservoir. 94 Any increase in net benefits from additional riverfiow or from future Nile control works is to be divided equally between Egypt and the Sudan.95 In one of its most important provisions, the agreement established the Permanent Joint Technical Committee (PJTC). 96 The PJTC is a joint river management structure charged with collecting data, overseeing construction of augmentation and storage works, and administering those works, including the Aswan High Dam.97 According to the agreement, the construction of the Aswan reservoir was to be the first of a series of over-year storage schemes on the Nile.98

91. 1959 Nile Agreement, supra note 87, art. II, 1 I. 92. Article I states that by their actual use of Nile waters at the time of the signing of the agreement, Egypt ("United Arab Republic") and the Sudan have established rights to 48 and 4 milliards of cubic meters (MCM), respectively, as measured at Aswan. Id art. I, 11 1-2. A milliard is a thousand millions, the British equivalent to the U.S. billion. R. RiCKLEFS, ECOL- o y (inside front cover) (3d ed. 1990). The treaty also establishes a framework whereby the two countries can cooperate "in order to make the best use of the available water in such a manner as to guarantee both their present and future requirements." 1959 Nile Agreement, supra note 87, introduction. 93. 1959 Nile Agreement, supra note 87, art. II. Article II calculates the net benefits from water storage created by the Aswan High Dam as follows: Mean natural river supply at Aswan 84 MCM Less over-year storage losses -10 Less present established rights -52 Total net benefit 22 MCM Id. art. II, 11 3-4. The treaty then allots 14.5 MCM of the net benefits to the Sudan (total 18.5 MCM) and 7.5 MCM to Egypt (total = 55.5 MCM). Id art. II, %4. 94. Id. art. II, 1 6. 95. Id. art. II, 4. 96. Id art. IV. Composed of an equal number of members from each country, the PJTC alternates its meeting place between Cairo and Khartoum and is authorized to establish its own rules of procedure "subject to the approval of the two Governments." Id. art. IV, 1 3. A Protocol Concerning the Establishment of the Permanent Technical Committee was signed on Jan. 17, 1960, naming four members (including a chairman) from each country. 97. 1959 Nile Agreement, supra note 87, art. IV. "[T]o insure technical co-operation... [and] to carry out the necessary study and research... the two Republics agree to constitute a Permanent Joint Technical Committee" with the following functions: (a) to draw up schemes for increasing river supply and direct research for project reports to be submitted to both Governments for approval; (b) to supervise execution of the approved projects; (c) to draw up working arrangements for works implemented in the Sudan; and (d) to supervise working arrangements by means of engineers from both countries for the Aswan reservoirs and for projects in the Sudan. Id. art. IV, 1. 98. Id. art. II, 1. Article III ("Projects for the exploitation of waters lost in the Upper Nile Basin") provides for Egyptian-Sudanese cooperation on a series of projects to increase the present natural river supply by the prevention of excess losses in the swamps of the Sudd. Id. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 755

The 1959 Agreement sets in place structures and institutions for further international cooperation. However, its shortcomings impede its usefulness in the face of climate change. Most glaringly, no other Nile riparians are parties to the agreement. The JPTC was given little authority to resolve regional disputes.99 The agreement allocates fixed rather than proportional amounts of water, 100 which limits the agreement's ability to cope with severely diminished riverflows. It does not provide for water quality, minimum riverflow, flood control, or environmental protection of the Nile. It does not obligate Egypt and the Sudan to share hydrological data,"° 1 has no dispute settlement procedures, and provides no guidance as to how to amend or adjust the agreement's provisions.102 Finally, the agreement fails to specify how short- or long-term shortages are to be allocated. The treaty's "drought" provision states that, if years of low supply drain the Aswan reservoir so that normal yearly quotas cannot be drawn, the PJTC is to draw up arrangements for facing the shortage and submit the proposals to both governments for approval. 0 3 During the 1980's water shortages, the PJTC reportedly failed to draw up such plans.'1°4 This failure to act in a time of crisis raises doubts about the capacity of the Nile's legal regime to respond to art. III. It states how costs as well as benefits are to be shared. Id. The most ambitious upper Nile development project undertaken by Egypt and the Sudan to date is the partially completed, 276-mile-long Jonglei Canal. See generally THE JONGLEI CANAL: IMPACT AND OP- PORTUNITY (P. Howell, M. Lock & S. Cobb eds. 1988). The canal is intended to divert the waters of the White Nile around the Sudd so as to prevent losses from evaporation. See Eshman, The Jonglei CanaL- A Ditch Too Big?, 25 ENVIRONMENT 15, 16-17 (1983). Although the project presents many environmental problems, see id, excavation of the canal began in 1978. See Collins, The Jonglei Canal: Illusion or Reality?, 13 WATER INT'L 144, 148 (1988). In 1984, however, armed troops from the southern Sudanese insurgency attacked the excavation base camp, taking hostages. Id. at 153. No further excavation has taken place since that time. Id. 99. Waterbury Interview, supra note 85. 100. 1959 Nile Agreement, supra note 87, art. I. 101. In fact, Egypt regards its data on Nile flows and its consumption of those waters to be highly confidential matters of national security. Interview with Mr. Van Tuijl, Senior Irriga- tion Engineer, World Bank (Mar. 22, 1989) [hereinafter Van Tuijl Interview]. 102. The treaty does recognize that the net benefit as calculated in article II "shall be subject to revision" by both parties at reasonable intervals to be agreed upon after the Aswan reservoir is completed. 1959 Nile Agreement, supra note 87, art. II, 5. The role of the PJTC in making proposals for dealing with water supply shortages, id. art. IV, l(e), could arguably also be considered an amending/adjusting procedure. However, the lack of specificity and independent authority for the PJTC indicates that any adjustments or amendments would require diplomatic negotiations between the two countries. 103. Id. art. IV. In view of the possibility of the occurrence of a series of years of low river supply causing a continous [sic] drop in the Sudd el Aali Reservoir levels to the stage that will not enable both Republics to draw their normal quota in any year, the Commit- tee shall put up the necessary arrangements to be followed by both parties to face the shortage of supply in such low years in a manner that will not cause any damage to either party and shall submit their proposals for approval by both Republics. Id. art. IV, 1(e). The provision gives no guidance as to how a deficit will be allocated. 104. Waterbury Interview, supra note 85. ECOLOGY LAW QUARTERLY [Vol. 17:741 climate change impacts. If Egypt and the Sudan cannot agree on short- term cutbacks, it does not bode well for efforts to get all of the Nile basin states to agree on the overall reductions in water allocations that would be required by a long-term shortage. If Egypt and the Sudan are to achieve a modicum of long-term water security, they must work out an arrangement with their upstream neighbors. In the past, however, Ethiopia has been highly suspicious of Egyptian overtures.105 The other basin states are willing to talk, but an all-Nile agreement still appears to be out of reach.1° 6 In the meantime, Egypt could reduce its own demand for Nile waters by confronting its explosive population growth and its often wasteful irrigation methods. Complicating the picture is the unknowable factor of climate change. Twice during the past two decades, the monsoons feeding the Nile's headwaters failed.107 Whether these droughts are caused by climate change is not known. 108 General circulation models disagree about whether global warming will cause reduced or increased rainfall in the upper Nile catchment areas.'°9 If demand increases while the Nile's flow decreases, conflict over its waters will escalate.

B. The Ganges River Basin The Ganges River supports approximately 350 million people living in its basin. 10 It flows from the mountains of Nepal, China, and India down through India, until it begins to branch into the many distributa- ries that form the Ganges Delta. "1 The main branch, called the Padma, flows southeast into Bangladesh." 2

105. See W. TILAHUN, EGYPT'S IMPERIAL ASPIRATIONS OVER LAKE TANA AND THE BLUE NILE (1979). In 1987, however, the heads of the two states indicated their willingness to cooperate in utilizing Nile basin waters. Okidi, supra note 65, at 654. 106. Krishna, supra note 89, at 34-35. 107. See Smith, supra note 66, at 298. 108. Pre-1900 weather records for most of Africa indicate sub-Saharan Africa's 15-year drought may not be that unusual. For instance, records of water levels in Lake Chad indicate that similarly severe droughts occurred between 1736 and 1758, and between 1820 and 1840. Kerr, Fifteen Years of African Drought, 227 SCIENCE 1453, 1454 (1985). 109. P. Gleick, The Vulnerability of Runoff in the Nile Basin to Climatic Changes 6-9 (Dec. 11-14, 1989) (prepared for the International Seminar on Climatic Fluctuations and Water Management, Cairo, Egypt). 110. Saeed, The Indo-Bangla Dispute over South Asian Rivers, in 2 REGIONAL STUDIES 55, 62 (1983). 111. Recent Developments, InternationalAgreements: Ganges Waters Treaty, Bangladesh- India, 19 HARV. INT'L L.J. 708, 709 (1978) (authored by Tariq Hassan) [hereinafter Hassan). 112. Id. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 757

Like the Nile, the Ganges is highly seasonal. 113 The June-October monsoon season brings torrential rains and annual floods. 114 In 1987, floods killed at least 600 people and displaced 1.5 million others. 115 In 1988, floods inundated three-quarters of the country's farmland and left more than 1000 dead. 1 6 During the dry season, when Bangladesh be- 7 comes deeply dependent on its waters, flow drops dramatically.1 India also faces periodic drought and flooding, but its upstream position gives it more leverage over the Ganges. For example, in the 1970's, India built a barrage at Farakka, eleven miles upstream from the India-Bangladesh border, and began to divert Ganges water into a feeder canal linked to the Bhagirathi River.'18 The Farakka diversion is intended to flush silt from the Bhagirathi-Hoogly channel, to help keep the port of Calcutta open for ocean-going vessels. 1 9 Bangladesh opposes the diversion and claims that it diminishes Bangladesh's agricultural productivity, allows salinity from the Bay of Bengal to intrude into underlying groundwater, and affects navigation, fisheries, forestry, industry, health, and ecology. 120 Because of the length of the river and the amount of drainage basin within Indian territory, India has historically regarded the Ganges as an "overwhelmingly" Indian river rather than an international river, 121 and it has insisted that it has the right to take such unilat- 122 eral action.

113. Nearly 80% of the Ganges' annual flow occurs during the four months of the monsoon. Rahman, Reducing the Flow of the Ganges. The Consequencesfor Agriculture in Bangla- desh, in 2 SOCIAL AND ENVIRONMENTAL EFFEcTs OF LARGE DAMS 267, 267-68 (1984). 114. See Misery Rising in the Floods in Bangladesh, N.Y. Times, Sept. 5, 1987, § 1, at 3, col. 1 [hereinafter Misery Rising]. 115. Id. 116. Bangladesh Thwarted on Area Flood Control, N.Y. Times, Sept. 30, 1988, at A3, col. 3. Bangladesh claims that massive deforestation upstream and streambed siltation are contrib- uting to the severity of its recent floods. See Misery Rising, supra note 114, § 1, at 3, cols. 1-2. However, a recent study prepared for the U.S. Agency for International Development (USAID) found "no grounds for considering deforestation in the Himalayas as a significant cause" of the Ganges' flooding in the Bangladesh delta. P. ROGERS, P. LYDON & D. SECK- LER, EASTERN WATERS STUDY: STRATEGIES TO MANAGE FLOOD AND DROUGHT IN THE GANGES-BRAHMAPUTRA BASIN 5 (1989) [hereinafter EASTERN WATERS STUDY]. 117. See Rahman, supra note 113, at 268. 118. The Bhagirathi, the Ganges' first major distributary, is heavily silted, with a natural flow only in the rainy season. See Hassan,supra note 11, at 709. It eventually feeds into the Hoogly River, which enters the Bay of Bengal at Calcutta. Id. 119. Id. 120. Abbas, Agreement on the Ganges, in WATER RESOURCES POLICY FOR ASIA 527 (M. Ali, G. Radosevich & A. Khan eds. 1987). When India first announced its plans for the barrage in 1951, Pakistan - then governing the Ganges delta - vehemently opposed the diversion, but India went ahead with its construction. See Kilz, Further Water Disputes Between India and Pakistan, 18 INT'L & COMP. L.Q. 718 (1969). 121. Hassan, supra note 111, at 713. 122. Some Indian commentators have cited the Harmon Doctrine, see infra note 260 and accompanying text, as justification for their government's actions. See Bains, The Diversion of InternationalRivers, 1 INDIAN J. INT'L L. 38 (1960); see also Jain, Further Water Disputes Between India and Pakistan: Rejoinder to Ku'z, 4 ALLAHABAD L. REv. 41 (1972) (arguing ECOLOGY LAW QUARTERLY [Vol. 17:741

Relations between Bangladesh and India have been uneven. Bangla- desh was formed in 1971 with the aid of Indian troops and the two countries enjoyed a brief period of harmony. 23 They agreed to establish a permanent Indo-Bangladesh Joint Rivers Commission (IBJRC) in 1972 to work on joint development of their shared river systems.' 24 But in 1976, negotiations over the Farakka barrage broke down,125 and Bangla- 26 desh registered a protest with the United Nations General Assembly.1 The General Assembly's consensus statement helped bring India back to the bargaining table.' 27 An interim agreement was reached in late 1977.128 The 1977 Ganges Agreement established short-term arrangements for allocating the waters of the Ganges during the January-May dry season.' 29 An annexed schedule of estimated waterflows broken down into ten-day periods gave fixed base allocations, but shortages and surpluses were allocated proportionately.1 30 If there was a deficit, Bangladesh was guaranteed a minimum of eighty percent of its scheduled allocation for that ten-day period.13' The 1977 Agreement thus provided for the main- 32 tenance of a minimum riverflow. that India's diversion of water does not violate the Helsinki Rules' principle of "reasonable and equitable sharing" because all the factors cited in the Rules go in India's favor). 123. Saeed, supra note 110, at 56-57. 124. The IBJRC, to be comprised of experts from both countries, was to undertake a comprehensive survey of the river systems the two countries shared and to develop cooperatively the waters of those rivers. Hassan, supra note 11, at 711. 125. Id at 712. At this same time a shift in the governance of Bangladesh occurred that also soured relations with India. 126. Id 127. Bangladesh first asked the General Assembly to pass a resolution calling on the U.N. Secretary General to assist the two countries in resolving the dispute over Farakka. Id. Pursu- ant to the recommendation of the Special Political Committee, this resolution was subse- quently withdrawn. Id. In the consensus statement that replaced the resolution, the two countries agreed to meet in Dacca and to negotiate a fair settlement. 31 U.N. GAOR Special Political Comm. Annex 1 (Agenda Item 121) at 2, U.N. Doc. A/31/359 (1976). 128. Agreement on Sharing of the Ganges' Waters, Nov. 5, 1977, Bangladesh-India, 17 I.L.M. 103 (1978) [hereinafter 1977 Ganges Interim Agreement]. 129. Id. art. II. The water is to be allocated according to an annexed schedule "based on 75 percent availability calculated from the recorded flows.., from 1948 to 1973." Id. The schedule specifies the amount of water to be released in 10-day periods from January 1 until May 31. Id. sched. At the highest flow (January 1-10), India can divert 40,000 cubic feet per second (cusecs) (40.6%), with 58,500 cusecs (59.3%) released to Bangladesh. Id. During the minimum period of flow (April 21-30), India can withdraw 20,500 cusecs (37.3%), while Ban- gladesh is allotted 34,500 cusecs (62.7%). Id. 130. If the actual flow of the Ganges at Farakka is more or less than the amount in the schedule, it will be shared in the proportion applicable to that period. Id. art. II, $ ii. 131. Id. A deficit is defined as a flow which has "come down to such a level that the share of Bangladesh is lower than 80 percent of the value" in the annexed schedule of allotments. Id. According to the schedule, Bangladesh was to receive at least 27,600 cusecs (34,500 x .80) during the lowest flow of the season. See id. 132. Note, however, that the 1982 memorandum extending most of the 1977 provisions deleted this guarantee of a minimum river flow to Bangladesh. Since then India has granted Bangladesh no more than a fixed percentage of the flow, whether or not a drought is occurring. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 759

In addition to its water allocation provisions, the 1977 Agreement set up several noteworthy institutional arrangements. For instance, it established a joint committee with representatives from the two Govern- ments to observe and record daily flows, submit a yearly report to both Governments, and implement the allocation arrangements contained in the agreement. 33 It outlined a hierarchy of dispute resolution mecha- nisms1 34 and provided for periodic review.1 35 However, it did not set forth a mechanism for adjusting its provisions if circumstances changed, nor did it obligate the two nations to share hydrological data.136 The agreement also did not provide for flood control measures, for maintenance of water quality, or for protection of riverine ecosystems. The 1977 Ganges Agreement was to remain in force for five years, and could be extended for additional periods, if reviews were satisfactory.' 37 Recognizing the "need to cooperate.., in finding a solution to the long-term problem of augmenting the flows of the Ganges," it charged the IBJRC with the task of investigating ways to augment the dry season flows of the Ganges. 38 While the agreement appears to provide for joint river development, in practice the IBJRC has not been able 39 to work out a permanent solution.' Since the 1977 Ganges Agreement, relations between India and Ban- gladesh regarding the Ganges have not improved. The agreement expired in 1982. At that time, the two governments issued a Memorandum of Understanding (MOU) extending most of the 1977 accord. 140 Signifi- cantly, the 1982 MOU deleted the clause guaranteeing Bangladesh a

Kaye, Resources and Rights, FAR E. ECON. REV., Feb. 2, 1989, at 19, 22. 133. 1977 Ganges Interim Agreement, supra note 128, art. IV. 134. Id. art. VII. First, the Joint Committee was to examine any difficulties arising in the agreement's implementation. Id. Any difference or dispute not resolved by the Joint Commit- tee was to be referred to a panel of equal numbers of Indian and Bangladeshi experts. Id. Finally, an unresolved dispute was to be referred to the two Governments for diplomatic negotiation. Id. 135. Id. art. XIII. The agreement was to be reviewed three years after coming into force and then six months before its expiration (four and a half years after coming into force). Id. 136. In fact, India routinely withholds hydrological data, effectively stalling progress in water-sharing negotiations. Kaye, The Wasted Waters, FAR E. EON. REV., Feb. 2, 1989, at 16, 17 ("Some of the most elementary data about the hydrology, climatology and power-gener- ating capacity of north India... remain classified as military secrets."). 137. 1977 Ganges Interim Agreement, supra note 128, art. XV. 138. Id. art. VIII-XI. Article X states that "[t]he two Governments shall consider and agree upon a scheme or schemes... and take necessary measures to implement it or them as speedily as possible." Id. art. X. Article XI provides that difficulties not resolved by the IBJRC are to be referred for diplomatic negotiation between the governments. Id. art. XI. The IBJRC was given three years to come up with recommendations for the two Governments to act on. Id art. IX. 139. Islam, The Ganges Water Dispute: An Appraisal of a Third Party Settlement, 27 AsiAN SURV. 918, 921 (1987). 140. Id. ECOLOGY LAW QUARTERLY [Vol. 17:741 minimum eighty percent of its scheduled dry season flow.1 41 Another interim memorandum signed in late 1985142 expired in 1988, leaving the 143 Ganges without a current agreement. Even when an agreement was in place, acrimony between the two countries was high. For instance, in 1983 Bangladesh claimed it received only seventy-one percent of its scheduled share of the Ganges' waters, 1" while India disputed Bangladesh's figures. 145 During the 1985 dry season, Bangladesh's Foreign Ministry declared that India's unilateral diversion of the Ganges was " 'contrary to' the recognized [sic] principles and practices of international law."'" Bangladesh and India agree that the dry season flow of the Ganges must be augmented, but they cannot agree on the means of so doing. India has proposed a seventy-five-mile-long "link canal" across Bangla- desh connecting the Brahmaputra with the Ganges.147 Both the intake and the outlet would be in Indian territory. Bangladesh is worried that India intends to divert Brahmaputra water for flushing the Bhagirathi and for irrigating Indian fields.' 48 It protests that the link canal would create a barrier between northern Bangladesh and the rest of the country, take an enormous area of fertile land out of cultivation (with an annual crop loss of US $225 million), and displace 2.5 million people. 49 India claims that the link canal would "create" land for Bangladesh, by en- abling more surface irrigation to take place. 50 Both India and Bangla- desh are increasing their overall use of the Brahmaputra's waters, raising the question of whether that river's dry season flow will be able to sustain the diversions envisaged for the canal.15' In addition, Bangladesh contends that it needs all of the water from both the Ganges and the Brah- maputra during the dry season to resist salt invasion from the Bay of Bengal. ' 52

141. See supra note 131 and accompanying text. 142. The MOU was signed on Nov. 22, 1985. Islam, supra note 139, at 921. 143. Interview with Peter Lydon, Consultant to USAID (Apr. 27, 1989). India has resisted the process of reaching new agreement, renewing each successive interim agreement for a shorter time period. See Kaye, supra note 132, at 22. 144. Abbas, supra note 120, at 535. 145. Interview with Peter Lydon, Consultant to USAID (May 3, 1989). 146. See Bangladesh Demands Share of Common River Water with India (Xinhua General Overseas News Service, Feb. 20, 1985) (available on NEXIS, Omni library). 147. Islam, supra note 139, at 923. The Brahmaputra has a much larger flow than the Ganges. Kaye, supra note 132, at 20. During the November-May dry season, its average flow is nearly four times that of the Ganges. Id. 148. See Islam, supra note 139, at 924. 149. Id. at 924 n.10. 150. Interview with Peter Lydon, Consultant to USAID (June 10, 1989). 151. Islam, supra note 139, at 925. 152. See Rahman, supra note 113, at 270. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 761

Bangladesh wants to keep any long-term solution for augmenting dry season flows within the Ganges basin. 53 It proposes a series of stor- 5 4 age dams in the upper regions of the Ganges in both India and Nepal.' The dams would trap the heavy monsoon floods that now flow unused to the sea for use later as dry season augmentation, and would also provide flood control.155 India contends there are few suitable sites in India and that Ganges water development in Nepal is outside its jurisdiction. 56 In any case, Nepal will not give up its heavily populated river valleys 57 easily. 1 Ironically, all nations sharing the Ganges could potentially benefit from joint basin management and use.158 Landlocked Nepal could sell hydroelectric power and gain access to the Indian Ocean via an inland waterway. 59 Both India and Bangladesh could benefit from more effective catchment-area management to provide flood control, off-season flow to irrigated lands, and hydroelectric power. '60 But until the nations involved develop more trust and experience in successful cooperation, the likelihood of long-term joint basin development remains slim. With Bangladesh at risk from both flood and drought, riverflow alterations due to climate change could present grave problems. In addition, Bangladesh is vulnerable to rising sea levels, which could inundate much of Bangladesh's low-lying delta and increase the amount of fresh water needed to repel salinity intrusion under its remaining land.' 6' Without the resources to build structures to protect low-lying areas, Ban-

153. Islam, supra note 139, at 923. Bangladesh's desire evokes the concept of the drainage basin, found in article II, comment (b) of the 1966 Helsinki Rules: "An international drainage basin is the entire area, known as the watershed, that contributes water, both surface and underground, to the principle river, stream or lake or other common terminus." Helsinki Rules on the Uses of the Waters of International Rivers, in REPORT OF THE FIFTY-SECOND CONFERENCE-HELSINKI 477, 485 (1967) (International Law Association) [hereinafter Hel- sinki Rules]; see infra text accompanying notes 248-51. 154. Islam, supra note 139, at 923. 155. Id.; Kaye, supra note 136, at 17. 156. Islam, supra note 139, at 923. 157. According to Islam, Nepal has "untapped storage possibilities" for Ganges waters. Id. at 926; see Kaye, Buyer's Market, FAR E. ECON. REv., Feb. 2, 1989, at 22 (describing Nepal's desire to develop a number of hydroelectric schemes that would export electricity to India in order to earn scarce foreign exchange). It is also not clear that this option would relieve Bangladesh's vulnerability to Ganges flooding. A recent USAID study concluded that Himalayan storage dams realistically cannot be expected to provide significant flood control. EASTERN WATERS STUDY, supra note 116, at xiii. The study also found no significant link between Bangladesh's recent floods and deforestation in Nepal. Id. at xii; see supra note 116. 158. See Kaye, supra note 136, at 18. 159. One proposal would create a navigation route from the Ganges Delta to Nepal, providing the landlocked country with a riverine outlet through Bangladesh. Islam, supra note 139, at 926 n.15. 160. Kaye, supra note 136, at 17-18. 161. Broadus, Milliman, Edwards, Aubrey & Gable, Rising Sea Level and Damming of RiveN" Possible Effects in Egypt and Bangladesh, in 4 EFFECTS OF CHANGES IN STRATO- SPHERIC OZONE AND GLOBAL CLIMATE 165, 171-86 (J. Titus ed. 1986). ECOLOGY LAW QUARTERLY [Vol. 17:741 gladesh may be caught between a drying river and a rising sea. In the meantime, high population growth rates plague both India and Bangla- desh, increasing their vulnerability to natural disaster. Given the stalemate over the Ganges and the seeming inability of both India and Bangladesh to stem their demands for water, the unknown factor of climatic change could add even more hostility and volatility to the region.

C. The ColoradoRiver Basin Starting in the high mountains of Wyoming, Colorado, Utah, and New Mexico, the Colorado River passes through desert regions of Ne- vada, Arizona, and California until it crosses the Mexican border and drains into the Gulf of California. 162 The water it provides to farmers and municipalities in this semi-arid region heightens its importance as a major North American river system. 163 Upstream United States has historically considered the Colorado to be primarily a U.S. river,164 and its engineers have sought to control its waters so as not to "waste" water by allowing it to flow unutilized to the sea. 165 One commentator has dubbed the Colorado "a river no more" because the many dams and aqueducts along its 1400-mile course have so transformed and regulated the river's flow. 166 The development and diversion of the Colorado's waters began around the turn of the century, when farmers in California's Imperial Valley began lobbying the newly created U.S. Reclamation Service for an "All-American Canal" to bring the Colorado's waters into the fertile but arid valley. 167 The farmers were already diverting water through an old overflow channel of the Colorado River, but the channel lay in Mexican territory. The farmers chaffed at Mexico's insistence on the right to take half of the diverted water in return for the use of its territory. 168 By 1920, Los Angeles city officials also began to consider the Colorado River as a source of both water and hydroelectric power. 169

162. Brown, Climate Variability and the Colorado River Compact: Implicationsfor Re- sponding to Climate Change, in SOCIETAL RESPONSE TO REGIONAL CLIMATIC CHANGE: FORECASTING BY ANALOGY 279, 280 (M. Glantz ed. 1988). 163. Id. 164. See P. FRADKIN, A RIVER No MORE: THE COLORADO RIVER AND THE WEST 298- 99 (1981). Only some 2000 square miles of the Colorado River's 244,000 square mile basin are situated within Mexico. Hundley, The West Against Itself The Colorado River - An Institu- tional History, in NEW COURSES FOR THE COLORADO RIVER: MAJOR ISSUES FOR THE NEXT CENTURY 9, 9, 25 (G. Weatherford & F. Brown eds. 1986). This fraction belies the economic importance of the Colorado River to Mexico, for the Mexicali Valley is one of the richest agricultural areas in all of Mexico. Id. at 25. 165. Brown, supra note 162, at 279 (citing P. FRADKIN, supra note 164). 166. See generally P. FRADKIN, supra note 164. 167. Id. at 11. 168. Id at 11-12. 169. Id. at 13-14. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 763

States in the upper basin of the Colorado became concerned that the rapid population growth of the Lower Basin states could lead to the as- sertion of superior claims for Colorado water under the doctrine of prior appropriation,170 and thus jeopardize the Upper Basin's rights to use water in the future. In 1922, at the initiative of the Upper Basin states, representatives of the seven basin states hammered out the Colorado Compact, an interstate agreement specifying the amounts of water reserved for the Upper and Lower Basin states. 171 In shaping the compact, the states' primary concern was to protect their own interests in Colo- rado water. They assumed that enough surplus water would be available 1 2 to supply any future promises to Mexico. 7 No agreement regarding the Colorado River was in place between Mexico and the United States at the time the Compact was enacted. Although the two countries had been negotiating toward an agreement for years, disputes over the Colorado's waters were irretrievably tangled with disputes over the Rio Grande. 173 In 1929, the United States offered Mexico 0.75 million acre-feet (MAF) of the Colorado's waters, the ap- proximate amount that Mexico was then using, 174 but Mexico demanded the right to four times that amount.175 After the completion of the Hoo- ver Dam in 1936 and the All-American Canal in 1942, the United States had the Colorado under control. Mexico had little choice but to come to the bargaining table. As a result, the two countries signed the 1944 Colo- 76 rado Treaty. 1

170. The doctrine of prior appropriation supplanted the common law system of riparian rights in much of the arid West. N. HUNDLEY, WATER AND THE WEST: THE COLORADO RIVER COMPACT AND THE POLMCS OF WATER IN THE AMERICAN WEsT 66-68 (1975). The riparian doctrine allowed the owner of land bordering a stream the right to the full flow of the water, but enjoined her from unreasonably impairing the rights of other riparian owners to the full flow. Id at 66. In contrast, the doctrine of prior appropriation gave priority water rights to the first person taking water from a stream, regardless of whether she owned land next to the stream, so long as she used the water beneficially. Id at 68. Under this doctrine, the person who owned priority water rights could diminish and even divert the flow of a stream. Id 171. The Colorado River Compact of 1921 divides the waters of the Colorado between the Upper Basin states (Wyoming, Utah, Colorado, New Mexico, and part of Arizona) and the Lower Basin states (Nevada, Arizona, and California). Colorado River Compact Act, 42 Stat. 171 (1921). 172. At the time of the Colorado Compact negotiations, the flow of the Colorado River at Lee's Ferry was believed to be at least 16.4 million acre feet (MAF) per year. Brown, supra note 162, at 283. When the Upper Basin states guaranteed in the Compact delivery of 7.5 MAF a year to the Lower Basin states at Lee's Ferry, they assumed that the Upper Basin states would be assured the use of another 7.5 MAF, leaving a surplus of 1.4 MAF. See id The Compact stated that any future obligations to Mexico would be met first using surplus water, and if the surplus water was inadequate, from both the Upper and the Lower Basin in equal shares. Id at 284. 173. See Hundley, supra note 164, at 26. 174. Id. at 26-27. 175. Id. at 26. 176. Treaty between the United States of America and Mexico Respecting Utilization of ECOLOGY LAW QUARTERLY [Vol. 17:741

The 1944 Treaty guarantees Mexico an annual 1.5 MAF of the Col- orado's water to be delivered according to a fixed schedule. 177 Only "[i]n the event of extraordinary drought or serious accident to the irrigation system in the United States" can the water allotted to Mexico "be reduced in the same proportion as consumptive uses in the United States are reduced."' 178 This provision has never been put into effect because Mexico has always received its allocation. 179 If a surplus of water occurs in any year, upstream U.S. might deliver up to 1.7 MAF, 180 but downstream Mexico would not acquire rights to waters in excess of the minimum 1.5 MAF. The United States therefore appears to retain the right to all waters over and above its minimum guarantee to Mexico.18' The 1944 Treaty focuses on consumptive uses' 82 of the Colorado and on joint basin development. The two governments agree to construct storage works, diversion structures, and drainage facilities to facilitate the delivery of water to Mexico.'8 3 In addition, the treaty provides for flood control works to be built on the Lower Colorado, with each government sharing in the cost of construction, operation, and maintenance.18 4 One of the most important provisions of the treaty establishes the International Boundary and Water Commission (IBWC) as a joint management structure.8 5 The IBWC is charged with applying the treaty's provisions for the distribution of Rio Grande and Colorado River waters.'1 6 Both the U.S. section and the Mexican section are headed by an Engineer Commissioner. 8 7 The IBWC is given broad powers to develop

the Waters of the Colorado and Tijuana Rivers and of the Rio Grande, Feb. 3, 1944, United States-Mexico, 59 Stat. 1219, T.S. No. 994 (1946) (entered into force Nov. 8, 1945) [hereinafter 1944 Colorado Treaty]. 177. Id. art. 10, s a. Article 15 consists of two schedules detailing how much water is to be delivered per month at each of two delivery points. Id. art. 15. 178. Id. art. 10, b. This provision specifies that proportional reductions to Mexico would occur when conditions made "it difficult for the United States to deliver the guaranteed quantity .... " Id. 179. Gleick, supra note 42, at 27. 180. 1944 Colorado Treaty, supra note 176, art. 10, b. Whether a surplus exists is to be determined by the United States' section. Id. 181. According to article 15(D), the U.S. "declares its intention to cooperate with Mexico in attempting to supply additional quantities" should there be excess water. Id. art. 15, D. This language is so vague, however, that downstream Mexico's only leverage would be the principles of equity and good neighborliness. See infra notes 257-93 and accompanying text. 182. 1944 Colorado Treaty, supra note 176, art. 3. Article 3 lists possible uses of Colorado River water in order of preference: (1) municipal uses; (2) agriculture and stock raising; (3) electric power; (4) other industrial uses; (5) navigation; (6) fishing and hunting; and (7) "[a]ny other beneficial uses .. " Id. The first four uses are considered consumptive uses in that they result in the loss of water due to human or animal consumption, plant uptake, seepage, evaporation, and other mechanisms. See id. art. 1. 183. Id. arts.'12-14. 184. Id. art. 13. 185. Id. art. 2. 186. Id. 187. Id. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 765 plans for works and then construct them, and to otherwise carry out its duties. 188 For example, the IBWC is obligated to furnish the information 8 9 it gathers if the two governments so request. The IBWC is charged with settling "all disputes to which its obser- vance and execution may give rise .... 190 In addition, the 1944 Treaty sets forth a mechanism for adjusting to new circumstances and for carrying out the treaty's broad provisions, by giving the IBWC the power to make decisions recorded in the form of minutes. 191 After the IBWC de- cides, minutes are submitted to the two governments. 192 If not disap- proved within thirty days, minutes are considered to have the approval of the two governments. 193 As such, they form a vital part of the Colo- rado's legal regime. The 1944 Treaty has no provisions for protection of riverine ecosystems' 94 or for maintaining the quality of the water the U.S. releases to downstream Mexico. This strained U.S.-Mexican relations during the 1960's, when drainage from an irrigation district on Arizona's Gila River doubled the salinity of water delivered to Mexico from 800 parts per million to 1500 parts per million. 195 Damages to Mexican farmers relying on Colorado waters were estimated to be as high as $150 million. 96 After years of negotiation, the U.S. and Mexico were finally able to work out an agreement on the quality of the Colorado's water delivered to Mexico. In 1965 and 1972, the U.S. agreed to release additional fresh water in order to dilute the salinity of the water reaching Mexico. 97 In

188. See id. art. 24. 189. Id. art. 24, 1 e. Furthermore, if the request is made by only one government, the Commissioner of the other government must have express authorization from his or her government to comply. Id. 190. Id art. 2. The treaty also authorizes the Engineer Commissioners to resolve disputes. Id. art. 24, d. If the Engineer Commissioners do not reach an agreement, they are instructed to refer the disputed points to their respective governments for resolution through diplomatic channels. Id 191. See id. art. 25. These minutes are forwarded within three days to the two governments. Id; see Friedkin, The InternationalBoundary and Water Commission, in U.N. DEP'T OF TECHNICAL CO-OPERATION FOR DEVELOPMENT, EXPERIENCES IN THE DEVELOPMENT AND MANAGEMENT OF INTERNATIONAL RIVER AND LAKE BASINS at 204, 210, U.N. Doc. ST/ESA/120, U.N. Sales No. E.82.II.A.17 (1983) (Proceedings of the U.N. Interregional Meeting of International River Organizations, Dakar, Senegal, May 5-14, 1981). 192. 1944 Colorado Treaty, supra note 176, art. 25. 193. See id. The minutes become binding "[e]xcept where the specific approval of the two Governments is required by any provision" of the treaty. Id 194. Article 3 does recognize fishing and hunting as beneficial uses, but it gives preference to domestic uses, agriculture, electric power, industrial uses, and navigation. Id. art. 3. 195. Friedkin, International Water Treaties: United States and Mexico, in WATER RE- SOURCES POLICY FOR ASIA 211 (M. Ali, G. Radosevich & A. Khan eds. 1987). Water from the new irrigation project leached naturally occurring salts from soils. When the irrigation water was drained off and returned to the river, the Colorado's salinity levels increased. 196. Bulson, Colorado River Salinity Problem: Has A Solution Been Found?, 9 INT'L LAW. 283, 283 (1975). 197. Minute 218 of the IBWC, United States-Mexico, Mar. 25, 1965, 21 U.S.T. 2478, ECOLOGY LAW QUARTERLY [Vol. 17:741

Minute 242 the U.S. finally agreed to limit the salinity in the water delivered to Mexico. 198 Since then, the average salinity of the waters delivered by the U.S. to Mexico has been in accordance with the minute's provisions. 199 Salinity problems will continue as long as Colorado water is used for irrigation.200 Yet the U.S. action is important in that it recognizes the responsibility of an upstream state for maintaining the quality of the water that passes through its territory into that of a downstream state. The power to adjust existing arrangements and to deal with new problems as they arise enlarges the IBWC's ability to cope with unforeseen contingencies, such as climatic change. However, the 1944 Treaty does have at least one worrisome problem if examined in terms of climate-related water management issues. By failing to define the term "extraordinary drought," the 1944 Treaty does not address the possibility of climate-related reductions in the Colorado's flow. At least one climato- logical study suggests that average temperatures are likely to increase by two degrees Celsius, an increase which would cause a twenty-nine percent decrease in Colorado River runoff.20' A decrease in flow of nearly one-third would have extreme ramifications for a region so heavily dependent on the Colorado's waters. 20 2 The U.S. could try to term this an "extraordinary drought," and seek to permanently reduce Mexico's allotment in proportion to its own shortfall. But Mexico might protest that it only agreed to a reduction in the event of a short-term crisis and not if a chronic water shortage developed because of climatic change. It might demand its minimum allocation of 1.5 MAF, no matter what the even- tual long-term flow of the Colorado becomes. Whatever the outcome, the abilities of both the U.S. and Mexico to arrive at a satisfactory resolution would be severely tested.

2484, T.I.A.S. No. 6988; Agreement Effected by Minute 241 of the IBWC, United States- Mexico, July 14, 1972, 23 U.S.T. 1286, 1288-89, T.I.A.S. No. 7404. 198. Agreement Confirming Minute 242 of the IBWC, United States-Mexico, Aug. 30, 1973, 24 U.S.T. 1968, 1978, T.I.A.S. No. 7708 ("Permanent and Definite Solution of the Inter- national Problem of the Salinity of the Colorado River"). The agreement obligates the United States to deliver water to Mexico with salinity levels averaging 115 ppm ( 30 ppm) above the salinity levels of the Colorado's waters arriving at the Imperial Dam. Id., 24 U.S.T. at 1972. 199. Friedkin, supra note 195, at 211. 200. Salinity problems caused by irrigation return flows can be controlled in various ways. For example, irrigation practices can become more efficient. However, the United States has decided instead to pursue the more expensive solution of constructing desalinization facilities along the Colorado. P. FRADKIN, supra note 164, at 312-16. 201. Revelle & Waggoner, Effects of a Carbon Dioxide-induced Climatic Change on Water Supplies in the Western United States, in BOARD ON ATMOSPHERIC SCIENCES AND CLIMATE, NATIONAL RESEARCH COUNCIL, CHANGING CLIMATE: REPORT OF THE CARBON DIOXIDE ASSESSMENT COMMITTEE (1983). 202. For discussions of the impact of a 29% decrease in Colorado River runoff, see Brown, supra note 162, and Gleick, supra note 42, at 30-32. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 767

D. Summary

As these case studies reveal, international river treaties vary greatly in the rights and obligations they establish. But even treaties remarkable for their flexibility reveal serious gaps when analyzed in the context of climate change. Table 1 compares the Nile, Ganges, and Colorado agreements on the basis of the climate-related water management issues identified in part 1.203

TABLE 1 Climate-Related Provisions of Selected River Treaties Nile Ganges Colorado Water Allocations Fixed Allocations Yes Fixed Yes Allocation of Shortages -Short Term Yes Yes Yes -Long Term No No No ProportionalAllocation of Surpluses Yes Yes No Water Quality No No Partial Minimum Riverflow No Yes No Ecosystem Protection No No No Flood Control No No Yes According to table 1, all three river agreements specify fixed amounts when allocating water among riparians, 204 with the possible exception of the 1977 Ganges Agreement. 20 5 Yet, climate change may cause diminished flows for some rivers to the point that basin states may no longer be able to draw their fixed allocations. While the river treaties include guidelines of varying effectiveness for accommodating short-term shortages, none have mechanisms for dealing with permanent shortages due to climate change. A precise definition of drought and guidelines on how to identify the onset of droughts would help signal when adaptive measures are needed. Yet none of the treaties include a comprehensive definition of drought, let alone climate change. For example, the vagueness of the 1944 Colorado Treaty's wording regarding "extraordinary drought" could enable Mexico to ar- 2 6 gue that its fixed allotment was a guaranteed minimum flow. 0

203. Table 1 specifically compares the 1959 Nile Agreement, the 1977 Ganges Interim Agreement, and the 1944 Colorado Treaty. 204. See supra notes 92-95, 129-30, 177-81 and accompanying text. 205. Because the 1977 Ganges Agreement provides that surpluses and shortages are to be allocated in the same proportion as the specific allocations in its annexed schedule, the agreement could be construed as setting down proportional allocations. See 1977 Ganges Interim Agreement, supra note 128, art. II, $ 2. 206. See supra notes 177-81, 201-03 and accompanying text. ECOLOGY LAW QUARTERLY [Vol. 17:741

Both the Nile and the Ganges agreements allocate water surpluses proportionately to the fixed allocations. 20 7 The Colorado agreement fails to allocate surplus waters; instead, it appears to permit the United States to appropriate all surplus for its own use.20 Only the 1977 Ganges Agreement guaranteed a minimum riverfiow to downstream Bangla- desh;2°9 however, this guarantee has been eliminated in subsequent 210 agreements between India and Bangladesh. The treaties do not contain provisions covering maintenance of water quality. However, the 1944 Colorado Treaty is supplemented by the minutes issued by the International Boundary and Waters Commis- sion, and these have recognized the United States' responsibility to provide downstream Mexico with water of a quality suitable for the intended 211 equitable use. None of the treaties contain measures for the protection of riverine ecosystems. In focusing on allocation of water for human uses, they fail to acknowledge the ecological importance of aquatic and wetland ecosystems. To be sure, the 1944 Colorado and 1959 Nile treaties were signed 212 before environmental problems had become international concerns. However the 1977 Ganges Agreement was negotiated at a time when environmental awareness was becoming widespread. Two of the three treaties contain no flood control provisions. This silence is most telling in the Ganges Basin, where flooding is a recurring problem. 213 In the case of the Nile, further flood control may have been unnecessary, as the Aswan High Dam, which prompted the treaty, eliminated Egypt's annual flooding.214 Only the Colorado Treaty mandated a series of flood control works with costs shared between the 5 governments. 21 Table 2 compares the Nile, Ganges, and Colorado agreements on the basis of the institutional arrangements identified in part I. Dispute resolution procedures are uneven among the river agreements studied. No dispute settlement procedure is in place for the Nile. The procedures for settling disputes over the Ganges and the Colorado are partial only, providing for panels made up of equal numbers of representatives from each country to resolve differences through discussion. 216 None of the

207. See supra notes 92-95, 129-31 and accompanying text. 208. See supra notes 180-81 and accompanying text. 209. See supra note 132 and accompanying text. 210. See supra notes 139-43 and accompanying text. 211. See supra notes 194-99 and accompanying text. 212. International awareness of environmental protection issues became widespread during the 1970's, following the 1972 Stockholm Convention and the creation of the United Na- tions Environment Programme. 213. See supra notes 113-16 and accompanying text. 214. See supra note 74 and accompanying text. 215. See supra note 184 and accompanying text. 216. See supra note 134; see also 1944 Colorado Treaty, supra note 176, art. 2. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 769

agreements studied provides for a defined arbitration procedure, should stalemate occur. 217 Only the 1944 Colorado Treaty, through its use of minutes, provides for easy adjustment. 218 In contrast, both the Nile and Ganges Treaties appear to require new diplomatic negotiations in order 2 19 to alter their legal regimes.

TABLE 2 Institutional Arrangements in Selected River Treaties Nile Ganges Colorado Dispute Resolution Procedures No Partial Partial Amendment/Adjustment No No Yes Joint Basin Development Yes Yes Yes Joint River Management Authorities Yes Yes Yes The 1959 Nile Agreement provides for joint basin development on the upper Nile. 220 In addition, the 1944 Colorado Treaty provides for other water management structures to be undertaken jointly.221 While the 1977 Ganges Agreement provides for India and Bangladesh to pursue the possibility of joint augmentation schemes to supplement the Gan- ges' dry season flow, the two countries have not yet been able to agree on a joint basin development strategy.222 Joint river authorities are in place for each basin studied, but, as the case studies reveal, these joint river institutions do not always accomplish their goals. The Nile's Joint Permanent Technical Committee failed to act during the 1980's drought, 223 and the Ganges' Indo-Bangladesh Joint Rivers Commission is at a stalemate because of disagreements between

217. The 1977 Ganges Interim Agreement's provisions for dispute resolution are fairly standard. First, the Joint Committee is to examine "any difficulty arising out of the implementation" of the agreement. 1977 Ganges Interim Agreement, supra note 128, art. VII. If the Joint Committee cannot resolve a difference or dispute, they then refer the controversy to a panel with equal numbers of Bangladeshi and Indian experts nominated by their respective governments. Id If the panel cannot reach a resolution, the two governments are to resolve the matter "by mutual discussion." Id But India and Bangladesh have not been able to resolve their disputes over allocation of Ganges waters, and thus the procedures in place are not adequate. A well-defined arbitration procedure can help nations avoid such a stalemate, but it requires that nations involved in a dispute consent to the jurisdiction of the designated arbitra- tor. Alheritiere, Settlement of Public InternationalDisputes on Shared Resources: Elements of a Comparative Study of InternationalInstruments, 25 NAT. RESOURCES J. 701, 707 (1985). For example, most U.N. Environment Programme regional seas conventions provide for an arbitration procedure, if other methods of dispute settlement such as negotiations have failed and if all parties to the dispute agree to such arbitration. Id. at 708. For further discussion of dispute settlement procedures in customary international law, see infra notes 377-84 and accompanying text. 218. See supra notes 190-93 and accompanying text. 219. See supra notes 102, 134 and accompanying text. 220. See supra notes 97-98 and accompanying text. 221. See supra notes 183-85 and accompanying text. 222. See supra notes 138-39 and accompanying text. 223. See supra notes 104 and accompanying text. ECOLOGY LAW QUARTERLY [Vol. 17:741 the two countries. 224 Only the International Boundaries and Waters Commission (United States-Mexico) appears to operate effectively due to its rulemaking authorities.225 It illustrates the advantages of vesting an international river commission with the authority to make decisions about unforeseen contingencies and conflicts. In general, the case studies also reveal that a treaty's effectiveness depends on the degree of trust and cooperation among participating states. When negotiating nations take intransigent positions or when basin states do not participate in a river's management, the flexibility needed to jointly manage a river and to adjust to changing conditions may not be possible. The Ganges illustrates how suspicion can prevent riparians from coming to agreement on how to develop and augment a shared river, even when all parties could benefit therefrom. Egypt's vulnerability is exacerbated by the lack of a formal structure that would enable all basin states to participate in the Nile's management. In contrast to these stories, the history of the Colorado River treaty demon- strates the accommodations that can be reached when nations develop the structures and procedures for working out new problems as they arise. In addition, it shows that even a powerful upstream nation can feel bound to acknowledge responsibility for injury caused by its activities to a downstream riparian, and take corrective action. In sum, because of the greater authorities of the IBWC and the longer record of cooperation between the United States and Mexico, the legal regime of the Colorado River appears to have a greater capacity for peacefully accommodating climate change than the current regimes of the Nile or the Ganges.

III THE GUIDANCE OF CUSTOMARY INTERNATIONAL LAW When specific agreements among nations fail to provide for new contingencies, international law looks elsewhere for guidance and to fill in gaps. This section draws on additional sources of international law to compile a synopsis of the customary principles and evolving practices most applicable to the water management problems anticipated as a result of climate change. International law is consent-based. It is derived by looking at what nations voluntarily agree to do or refrain from doing, either expressly, through treaties, or impliedly, by custom or general practice. 226 In addition to treaties and state practice, other widely accepted sources of inter-

224. See supra notes 137-57 and accompanying text. 225. See supra notes 190-200 and accompanying text. 226. International conventions and treaties are rules which nations that are parties to the treaties expressly recognize. Customary law is derived from looking at what nations actually do. The practice must become virtually uniform among states to become customary law. See M. JANIs, supra note 46, at 36-40. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 771 national law include "general principles of law recognized by civilized nations," as well as judicial decisions and the teachings of respected jurists.227 General principles become customary law when they become the general practice of states. The measure of whether a principle has become customary law is said to be that states not only act accordingly, but 228 that they feel obliged to so act. Determining what nations generally accept as customary law regarding rivers shared with other nations can be difficult because each river is geographically and politically unique. 229 Common practices may not emerge, since whether a state is upstream, downstream, or sharing a river as a border with another state can determine that state's position on issues regarding its rights and responsibilities towards its neighbors. As the case studies demonstrate, nations are generally reluctant to give away national sovereignty, especially over an economically and strategically important resource like water. They will invoke legal principles when such principles support a diplomatic or political point. But they will ar- gue that the law is uncertain or nonexistent when it goes against their national interests. 230 In short, because customary law is inextricably linked with geography, politics, and diplomacy, it is slow to develop. In recent years, several international bodies have set out to examine and codify customary law and state practices into more accessible principles and rules. These codification efforts do not yet have the status of agreed-upon international law. But they could accelerate international acceptance of certain general guiding principles and thus help nations to accommodate climate change impacts.231 One of the first efforts to codify principles of international law regarding shared water resources was undertaken by the International Law Association (ILA), a private association of international law practition- ers. After twelve years of development, the ILA formally adopted the Helsinki Rules on the Uses of the Waters of International Rivers232 in 1966. The ILA continues to develop the Helsinki Rules by issuing from

227. Statute of the Court, art. 38, 1(c), 1978 I.C.J. Acts & Docs. No. 4, at 77. 228. M. JANis, supra note 46, at 39-40 (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1985)). 229. Among the many excellent compilations of international law regarding shared rivers are D. CAPONERA, THE LAW OF INTERNATIONAL WATER RESOURCES (United Nations Food and Agriculture Organization, Legis. Study No. 23, 1980); THE LAW OF INTERNATIONAL DRAINAGE BASINS (A. Garretson, R. Hayton & C. Olmstead eds. 1967) [hereinafter DRAIN- AGE BASINS]; THE LEGAL REGIME OF INTERNATIONAL RIVERS AND LAKES (R. Zacklin & L. Caflisch eds. 1981). 230. Okidi, supra note 82, at 401. 231. In general, these codifications are considered "soft law." The principles so derived are not strictly binding on states, but they are also not without legal significance, in that they may harden over time into customary international law. See M. JANIS, supra note 46, at 44-45. 232. Helsinki Rules, supra note 153. The Rules consist of 37 articles covering such topics as the equitable utilization of international rivers, pollution, navigation, timber floating, and procedures for preventing and settling disputes. ECOLOGY LAW QUARTERLY [Vol. 17:741

time to time additional resolutions or guidelines to cover other aspects of international river law. 233 The Helsinki Rules do not necessarily reflect customary international law in their entirety. 234 However, they are widely referenced in books and legal periodicals, 235 and could supply concepts applicable in the context of climate change. A more recent effort to aid the development of law regarding international rivers is that undertaken by the U.N.-affiliated International Law Commission (ILC).236 A 1970 request from the General Assembly for the ILC to look at international water law237 has evolved into a partially completed draft entitled "The Law of the Non-Navigational Uses of International Watercourses" (ILC Draft Articles).2 38 The first round of drafting is scheduled to be completed by 1991.239

233. For example, flood control articles related to the Helsinki Rules were adopted by the ILA in 1972. Report of the Committee on International Water Resources Law, in REPORT OF THE FIFTY-FIFTH CONFERENCE-NEW YORK 40, 43-97 (1974) [hereinafter IWRL Report] (Pt. II - Flood Control). 234. For example, the concept of the "drainage basin" has been resisted in particular by nations concerned about issues of sovereignty. Interview with Stephen McCaffrey, Special Rapporteur for the International Law Commission and Professor, McGeorge School of Law, University of the Pacific (Feb. 16, 1989) [hereinafter McCaffrey Interview]. 235. See, eg., DRAINAGE BASINS, supra note 229, which was published shortly after the Helsinki Rules were issued by the ILA and which discusses many of the Helsinki Rules' principles, including the "drainage basin" concept. 236. The ILC was established in 1947 to aid in the progressive development and codification of international law. Solanes, The United Nations' Role in Promoting and Fostering Coop- eration in the Field of International Water Resources at 2, in THE MANAGEMENT OF INTERNATIONAL RIVER BASIN CONFLICTS (E. Vlachos, A. Webb & I. Murphy eds. 1986) (Proceedings of a Workshop at the International Institute for Applied Systems Analysis, Lax- enburg, Austria). The General Assembly elects the ILC's 34 members, composed of jurists from as many countries around the world, and the ILC reports back to the General Assembly on its progress. McCaffrey Interview, supra note 234. The ILC is assisted in its work by Special Rapporteurs who summarize existing treaties, evidence of state practice, and judicial opinions from around the world on topics being considered by the ILC, and draft provisions for the ILC's consideration. Id. Professor Stephen McCaffrey from McGeorge School of Law in Sacramento, California is the current Special Rapporteur for the Law of the Non-Naviga- tional Uses of International Watercourses. 237. G.A. Res. 2669, 25 U.N. GAOR Supp. (No. 28) at 127, U.N. Doc. A/8028 (1970) (recommending that the ILC formulate a set of principles and rules for the use, development, conservation, and management of international watercourses). 238. Report of the International Law Commission to the General Assembly, 43 U.N. GAOR Supp. (No. 10) ch. III, at 45, U.N. Doc. A/43/10 (1988) [hereinafter ILC Draft Articles]. 239. Drafted and approved so far are the introductory sections, and parts on general principles of international watercourse law, information exchange, environmental protection, and harmful conditions and emergency situations. McCaffrey, Fourth Report on the Law of the Non-Navigational Uses of International Watercourses, U.N. Doc. A/CN.4/412 (1988), to be reprinted in [1988] 2 Y.B. INT'L L. COMM'N [hereinafter Fourth Report] (International Law Commission, 40th sess.); Report of the InternationalLaw Commission on the Work of its Forty- Second Session, 45 GAOR Supp. (No. 10) arts. 22-27, at 145-46, U.N. Doc. A/45/10 (1990) [hereinafter 1990 ILC Report]. Scheduled for consideration are draft articles on the management of watercourses and the settlement of disputes. McCaffrey, Sixth Report on the Non- Navigational Uses of International Watercourses U.N. Doc. A/CN.4/427 (1990) [hereinafter 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 773

In drafting these articles, the ILC looks at state practice, existing treaties, and other international sources of law and then derives general principles. 240 It also develops new concepts applicable to shared rivers and their basins. For instance, in 1989 the Special Rapporteur's proposal to the ILC broke new ground by mentioning global warming and climate change as possible itatural phenomena meriting consideration by the 1 ILC.24 Because its thirty-four members represent a range of viewpoints in terms of geography, economic development, legal traditions, and political ideologies, the ILC's work has been called quasi-political. 242 Often consensus is reached only after years of debate. 243 This careful effort to achieve international agreement on basic legal principles increases the credibility of the ILC's codification effort. Its formulations are regarded almost as rules, even before acted on by the U.N. General Assembly, and '244 they are said to have a "quasi-legal effect." In 1980, the ILC adopted a "framework agreement" approach, whereby the general rules included in the codification effort were to be "precise and detailed enough to safeguard the rights of interested parties in the absence of specific agreements" and which could also serve as a model for elaborating existing international river agreements. 245 Some observers believe that this approach may lead to a draft convention evolving out of the ILC's work.246 For others, the "framework agree- 247 ment" approach remains controversial. The principles of international law identified and discussed in the remainder of this section evolved into customary law and/or became codified during a time when it was assumed that climate was relatively stable. In the next section, the principles are applied to the water man-

Sixth Report] (International Law Commission, 42nd sess.). 240. See id 241. McCaffrey, Fifth Report on the Law of the Non-Navigational Uses of International Watercourses at 7-9, U.N. Doc A/CN.4/421 (1989), to be reprintedin [1989] 2 Y.B. INT'L L. COMM'N [hereinafter Fifth Report] (International Law Commission, 41st sess.). 242. See Solanes, supra note 236, at 2. 243. See, e.g., infra text accompanying notes 248-56 (regarding the debate over the term "international watercourse [system]"). 244. F. KIRGIS, INTERNATIONAL ORGANIZATIONS IN THEIR LEGAL SETTING: DOCU- MENTS, COMMENTS, AND QUESTIONS 250-51 (1977). 245. McCaffrey, Second Report on the Law of the Non-Navigational Uses of International Watercourses at 22, U.N. Doc. A/CN.4/399 (1986), reprinted in [1986] 2 Y.B. INT'L L. COMM'N 87, U.N. Doc. A/CN.4/SER.A/1986/Add.1 (Pt. 1) [hereinafter Second Report] (In- ternational Law Commission, 38th sess.). 246. McCaffrey, Water Resources in the Middle East.- Impoct on Economics and Politic. 1986 PRoc. AM. SOC'Y INT'L L. 249, 263 (80th meeting). 247. Some representatives assert that obligations regarding international rivers should be made at the regional level rather than through an international effort. According to this view, the ILC should confine itself to developing guidelines and general recommendations for the use of rivers shared by states. Second Report, supra note 245, at 26. ECOLOGY LAW QUARTERLY [Vol. 17:741 agement issues related to climate change that have been considered throughout this Comment. The object is to assess the guidance available from customary law for nations seeking peaceful and cooperative resolutions to conflicts arising from climate-related changes to shared rivers.

A. International Watercourses Political boundaries rarely correspond to natural formations and rivers do not generally respect national borders. In an attempt to give legal recognition to physical realities and a more rational organization to the management of international rivers, the codifiers of international river law have worked to develop definitions of a river based on geographical and hydrological concepts. 248 However, because state practice is guided primarily by considerations of territorial sovereignty rather than by reference to geographical regions, these efforts remain highly controversial. The international community has not yet concurred on a term that expresses the concept of regional geographical interests based on a shared river. In 1958, the ILA agreed that "a system of rivers and lakes in a drainage basin should be treated as an integrated whole. ' 249 This came to be known as the "international drainage basin concept. ' 250 The ILA's reasoning was that a river required "comprehensive consideration in order to effect maximum utilization and development of any portion of its waters."' 25' The Helsinki Rules' insistence on looking beyond concepts of national sovereignty to deal with a river system's overall utilization was an important development. However, many nations still resist the "drainage basin" concept. The ILC rejected the "drainage basin" concept because some governments objected that the term could be construed to include land as well as waterways,252 which disturbed traditional notions of territorial sovereignty. In its stead, the ILC has proposed the term "international watercourse system. '253 However, because the word "system" still

248. See Olmstead, Introduction, in DRAINAGE BASINS, supra note 229, at 6-7. 249. Id. at 8-9. 250. "An international drainage basin is the entire area, known as the watershed, that contributes water, both surface and underground, to the principal river, stream or lake or other common terminus." Helsinki Rules, supra note 153, art. II, comment (b), at 485. 251. Id art. II, comment (a), at 485. 252. McCaffrey Interview, supra note 234. 253. In 1980 the ILC accepted the following "provisional working hypothesis" for the term "international watercourse system": A watercourse system is formed of hydrographic components such as rivers, lakes, canals, glaciers and groundwater constituting by virtue of their physical relationship a unitary whole; thus, any use affecting waters in one part of the system may affect waters in another part.

[i'o the extent that the uses of the waters of the system have an effect on one another, to that extent the system is international, but only to that extent; accordingly, 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 775 evokes broader hydrological concepts than many nations are willing to accept, the ILC has so far agreed only on "international watercourse," bracketing the term "[system]" to indicate that the complete term, "international watercourse [system]," has not been finalized. 254 Those who wish to retain the term "system" point out that without the term it is difficult to express the relative concept that an international watercourse can have different regimes of uses at the same time, depending on the 255 various ways the watercourse is used. The ILC has also been reluctant to advance the developing concept of a "shared natural resource. '256 In its hesitancy to adopt the terms "[system]" and "shared natural resource," the ILC signaled that emphasis would remain on the more political concepts of state sovereignty and national boundaries, instead of a regional vision of international river systems based on actual geography. Failure to arrive at a regional definition for international rivers casts doubt on customary law's ability to respond to climate change. Deter- mining if climate change is occurring, and to what extent, will depend on accurate monitoring and recordkeeping of rainfall and other hydrological events throughout a river's basin. In addition, the idea that the nations with territory within an international river's basin have joint concerns is integral to the important principle of "equitable utilization."

B. Equitable Utilization Perhaps the most fundamental concept in international river law today is that of "equitable utilization," or "limited territorial sovereignty." Under this principle, each basin state is entitled to a reasonable use of the waters that flow through its territories.257 For example, the principle of equitable utilization was invoked during the Colorado River dispute, when Mexico argued that it was entitled to not only the quantity of water

there is not an absolute, but a relative, international character of the watercourse. Second Report, supra note 245, at 7. 254. Id. at 14, 30-31. In 1986, the ILC decided to move on for the time being to the drafting of other articles and to postpone the task of deciding whether or not to include the term "[system]". Id. at 31-32. 255. Id. at 14-15. For example, a river system used for navigation would look different than a river system used for irrigation or hydroelectric power generation, even though these uses could exist simultaneously on the same international river. See id. at 15. 256. Id. at 18. In 1984, the ILC replaced the "shared natural resource" concept with the idea that "[t]he waters of an international watercourse shall be developed, used and shared... in a reasonable and equitable manner... on the basis of good faith and good-neighbourly relations." Id. at 18 n.25. While some members favored the revision, others felt that the concepts of good faith and good-neighborly relations were too vague and uncertain. Id. at 18- 19. McCaffrey suggests that this conceptual revision replaced the "shared natural resource" concept with the idea that states were entitled to "a reasonable and equitable share of the uses of the waters of an international watercourse," to give greater legal certainty to the articles. Id. at 24, 41. 257. Lipper, Equitable Utilization, in DRAINAGE BASINS, supra note 229, at 15, 18. ECOLOGY LAW QUARTERLY [Vol. 17:741 guaranteed under the 1944 Treaty, but to water meeting a standard of 258 quality that would ensure its reasonable use in agriculture. The doctrine of equitable utilization has gained general acceptance as a principle of international law.259 Its evolutionary importance is clearer when compared to legal principles concerning the use of international waters propounded in the past. For example, according to the principle of "absolute territorial sovereignty," or the Harmon Doctrine, a state could unilaterally use any water within its borders without restric- tion, even if that use substantially injured a neighbor.26° Under the principle of "absolute territorial integrity," the opposite of the Harmon Doctrine, a state could use a shared resource only to the extent that such use would not cause any damage or injury in the territory of another state.261 Finally, under the principle of "prior appropriation," the state which first used quantities of the water held the right to continue that 2 6 2 use. Equitable utilization integrates these concepts into a recognition of the shared interests of all basin states.263 A state may have reasonable use of the waters flowing through its territory, but it may not unilaterally appropriate all waters for its own use in ways that would deny another state its own reasonable uses.264 Further, it may use the water in ways that affect another state's use of that water, if its use is reasonable and if it takes measures to compensate the other state or to allow the other state reasonable use in turn. 265 A more reasonable use later in time may trump a prior use.266

258. See Bulson, supra note 196, at 286-87. 259. Critical Essay, A Survey of the InternationalLaw of Rivers, 16 DEN. J. INT'L L. & POL'Y 139, 152 (1987). 260. The Harmon Doctrine gained its name from U.S. Attorney General Judson Harmon, who responded in 1895 to Mexico's protest of a U.S. diversion of Rio Grande water with the statement that "the rules, principles, and precedents of international law impose no liability or obligation upon the United States." 21 Op. Att'y Gen. 274, 283 (1895). Some commentators still evoke the Harmon Doctrine. See Bains, supra note 122, at 39 ("[I]t is a rule of international law that the state concerned has the unrestricted right to the use of water flowing through her territory."). More than 100 river treaties do restrict the freedom of action of one or both of the parties, however, indicating the widespread rejection of the Harmon Doctrine today and the rising importance cofthe "equitable utilization" theory. See U.S. DEP'T OF STATE, LEGAL ASPECTS OF THE USE OF SYSTEMS OF INTERNATIONAL WA- TERS, S. Doc. No. 118, 85th Cong., 2d Sess. 63 (1958). 261. Critical Essay, supra note 259, at 142. 262. Id. at 143. 263. See generally Lipper, Equitable Utilization, in DRAINAGE BASINS, supra note 229, at 15, 15-88. 264. See id at 24-25. 265. See id. at 47-49. 266. Some treaties use the term "optimal utilization," a more recent and quite different theory not yet considered a customary principle of international law. For instance, the preamble of the 1977 Ganges Agreement calls for "making the optimum utilisation [sic] of the water resources" of the region. 1977 Ganges Interim Agreement, supra note 128, preamble. Simi- larly, the introduction of the 1959 Nile Agreement calls for the "full utilization" of the Nile's 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 777

The concept of equitable utilization is embodied in both the Helsinki Rules and the ILC Draft Articles. According to the Helsinki Rules, "[e]ach basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses" of a drainage basin's waters. 267 Furthermore, each basin state has "rights equal in kind and correlative" to those of other basin states. 268 No particular use or category of uses is entitled to an inherent preference2 69 and a new use could supplant an existing use.270 The ILC Draft Articles use the term "equitable and reasonable utilization and participation. ' 271 By providing that watercourse states "shall participate" in the use and protection of an international watercourse, the Draft Articles extend the concept of "equitable utilization" beyond a right to use a watercourse reasonably to include a duty to protect it.272 "Equitable" does not mean equal shares. Rather, it involves a com- plex and often difficult balancing of competing factors, ranging from ge-

waters. 1959 Nile Agreement, supra note 87, introduction. Although the Helsinki Rules do not require the optimal use of an international watercourse, riparian states are held to a "duty of efficiency which is commensurate with their financial resources." Helsinki Rules, supra note 153, art. IV, comment (b), at 487. "Optimal utilization" can be defined as "the most economically beneficial use of the river" and not necessarily the most equitable use. Critical Essay, supra note 259, at 153. It appears to exclude environmental protection measures, unless they can be shown to be more economically beneficial than other types of uses. The ILC Draft Articles mention the possibility of attaining "optimum utilization," ILC Draft Articles, supra note 238, art. 6, 1, at 77, but this is viewed by the ILC more as a goal than a requirement. Interview with Stephen C. McCaffrey (Feb. 19, 1989). 267. Helsinki Rules, supra note 153, art. IV, at 486. 268. Id. art. IV, comment (a), at 486-87. Comment (a) explains the idea in economic terms: "to provide the maximum benefit to each basin State... with the minimum detriment to each." Id. This does not necessarily mean the "most productive" use, nor the "most efficient methods known in order to avoid waste." Rather, the intent is "to hold States to a duty of efficiency which is commensurate with their financial resources." Id art. IV, comment (b), at 487. 269. Id. art. VI, at 491. The comment observes that historically, navigation was a preferred use. It found no substantial authority for supporting the proposition that domestic use had succeeded navigation as a preferred use. Id. art. VI, comment, at 491-92. 270. Article VIII of the Helsinki Rules provides for an "existing reasonable use" to continue until its continuance is outweighed by other factors that indicate it should be "modified or terminated so as to acommodate a competing incompatible use." Id. art. VIII, at 493. The comment to article VIII explains that if an existing use became a vested right, it would freeze river basin development according to earlier uses. Id art. VIII, comment (a), at 493. On the other hand, failure to give some precedence to existing uses could inhibit river development. Id If states had no legal protection for existing uses, they would be unlikely to invest in dams and other costly development measures. Id The comment argues for a middle ground reflecting a "dynamic" sense of balance between existing and future uses. Id Some special emphasis does appear to be placed on existing uses, however. Critical Essay, supra note 259, at 151. 271. ILC Draft Articles, supra note 238, art. 6, at 77. 272. Id. art. 6, 2, at 77. Article 6, paragraph 2 states that "[w]atercourse States shall participate in the use, development and protection of an international watercourse [system] in an equitable and reasonable manner." Id. (bracketed word "system" in original). This is to include both "the right to utilize" and "the duty to co-operate." Id. (emphasis added). ECOLOGY LAW QUARTERLY [Vol. 17:741 ography to availability of alternative resources. 273 Both the ILC Draft Articles and the Helsinki Rules recognize climate as one of the factors to be considered. 274 Unfortunately, neither the ILC Draft Articles nor the Helsinki Rules provide guidance as to how to weigh the various factors, including climate. Nor do they indicate that the factors, including climate, might change over time. Do countries with desert climates requiring irrigation for agricultural development deserve more of a river's waters than countries with climates able to sustain some rainfed agriculture? The comments to the Helsinki Rule's article V simply state that all factors are to be considered.275 Furthermore, neither the Helsinki Rules

273. The Helsinki Rules list the following as relevant factors to be considered: (a) the geography of the basin, including in particular the extent of the drainage area in the territory of each basin State; (b) the hydrology of the basin, including in particular the contribution of water by each basin State; (c) the climate affecting the basin; (d) the past utilization of the waters of the basin, including in particular existing utilization; (e) the economic and social needs of each basin State; (f) the population dependent on the waters of the basin in each basin State; (g) the comparative costs of alternative means of satisfying the economic and social needs of each basin State; (h) the availability of other resources; (i) the avoidance of unnecessary waste in the utilization of waters of the basin; (j)the practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and (k) the degree to which the needs of a basin State may be satisfied without causing substantial injury to a co-basin State. Helsinki Rules, supra note 153, art. V, 2, at 488. Article 7 of the ILC Draft Articles states that utilization of an international watercourse in an equitable and reasonable manner requires taking into account all relevant factors and circumstances, including: (a) geographic, hydrographic, hydrological, climatic and other factors of a natural character; (b) the social and economic needs of the watercourse States concerned; (c) the effects of the use or uses of an international watercourse [system] in one watercourse State on other watercourse States; (d) existing and potential uses of the international watercourse [system]; (e) conservation, protection, development and economy of use of the water resources of the international watercourse [system] and the costs of measures taken to that effect; (f) the availability of alternatives, of corresponding value, to a particular planned or existing use. ILC Draft Articles, supra note 238, art. 7, T 1, at 77-78 (bracketed word "system" in original). Note that neither the ILA nor the ILC, in their listing of factors to be considered in determining equitable utilization, recognize human rights concerns, such as the need to protect indige- nous peoples. 274. Article 7 of the ILC Draft Articles lists factors relevant to equitable and reasonable utilization. ILC Draft Articles, supra note 238, art. 7, I 1, at 77-78. Included are "geographic, hydrographic, hydrological, climatic and other factors of a natural character." Id. art. 7, l(a), at 77 (emphasis added). The Helsinki Rules also list climate as one of the factors to consider in determining what is reasonable and equitable utilization of a river. Helsinki Rules, supra note 153, art. V, I 2, at 488. 275. According to the comment to article V, "no factor has a fixed weight nor will all factors be relevant in all cases. Each factor is given such weight as it merits relative to all the other factors." Helsinki Rules, supra note 153, art. V, comment, at 489. Article V does refer to "the practicability of compensation" as "a means of adjusting conflicts among uses.... " Id. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 779 nor the ILC Draft Articles consider the protection of a natural ecosystem to be an equitable use of a river.276 Thus, definitions and weightings of the factors underlying determinations of equitable utilization, including the roles of natural ecosystems, climate, and climate change, are sorely 277 needed to guide nations in the years to come.

C. Obligation Not to Cause Harm Under customary international law, a state can do whatever it wants on its own territory, provided the effects of those activities remain within the state's territory.278 A state is responsible, however, if any of its activities cause extraterritorial harm. This customary principle is often ex- 279 pressed with the Latin maxim, sic utere tuo ut alienum non laedas. 280 The term "good neighborliness" is also commonly used. An early adjudication of this principle281 is the Trail Smelter arbitration case. 282 In awarding compensation to the United States for harm suffered because of fumes from a smelter located in Canada, the tribunal declared: "[N]o State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.... The Helsinki Rules recognize the principle of sic utere by requiring a state to "prevent any new form of water pollution... which would cause substantial injury in ... a co-basin State."' 284 For "existing" pollution, art. V, 1 2(j), at 488. 276. The ILC lists "conservation [and] protection... of the water resources" as factors to be considered in arriving at equitable utilization, but at the same time it lists "development and economy" of those resources. ILC Draft Articles, supra note 238, art. 7, l(e), at 77. The inclusion of the term "conservation" was controversial at the time. McCaffrey Interview, supra note 234. For additonal discussion of the ILC's treatment of riverine ecosystem protection, see infra text accompanying notes 347-50. 277. For a more detailed discussion of the inadequacies of the concept of "equitable utilization" in the context of climate change, see infra text accompanying notes 303-11. 278. Williams, Public International Law Governing Transboundary Pollution, 13 U. QUEENSLAND L.J. 112, 114 (1984). 279. "Use your own property in such a manner as not to injure that of another." BLACK'S LAW DICTIONARY 1238 (5th ed. 1979). For an example of an organization's use of this phrase, see ILC Draft Articles, supra note 238, art. 8, commentary, at 83. 280. See, e-g., Second Report, supra note 245, at 19. 281. See Lester, Pollution, in DRAINAGE BASINS, supra note 229, at 89, 97. 282. Trail Smelter Case (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905 (1941), reprinted in 35 AM. J. INT'L L. 684 (1941). 283. ki, 35 AM. J. INT'L L. at 716. The International Court of Justice affirmed this principle in the Corfu Channel case by recognizing "every State's obligation not to allow know- ingly its territory to be used for acts contrary to the rights of other States." Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9, 1949) (determination on the merits). 284. Helsinki Rules, supra note 153, art. X, a, at 496-97. An accompanying comment relates this responsibility to the principle of equitable utilization: "Any use of water by a basin State... that denies an equitable sharing of uses... conflicts with the community of interests ... in obtaining maximum benefit from the common resource." Id. art. X, comment (b), at 499. The comment gives as examples the diversion of water and uses causing pollution. Id. ECOLOGY LAW QUARTERLY [Vol. 17:741 the Helsinki Rules require only that states take "reasonable measures to abate. '28 5 Because some beneficial uses may cause some pollution, pollu- '286 tion is not prohibited per se, but only if it causes "substantial injury. In addition, states are not required per se to stop the harmful activity; compensation or mitigation may be acceptable alternatives for discharg- 2 7 ing state responsibility for extraterritorial injury. The ILC Draft Articles also recognize the sic utere principle. Arti- cle 8 specifies that states shall "[utilize] an international watercourse [system] ...in a manner that does not cause appreciable harm to other watercourse States. ' 288 To be an "appreciable" harm, there must be a "real impairment of use, i.e., a detrimental impact of some consequence" upon the public health, industry, property, agriculture, or the environ- 289 ment of another state. In 1990, the ILC adopted draft articles which would apply to water- related emergencies, whether from natural causes or as a result of human activity.29° The articles require states to take "all appropriate measures to prevent or mitigate conditions that may be harmful to other watercourse States ....1"291

285. Id. art. X, I l(b), at 497. 286. Compare the principle of sic utere to the related principle of "absolute territorial integrity" of the downstream state. The opposite of the Harmon Doctrine, the principle of "absolute territorial integrity" would prohibit a state from using resources in any way that would injure the territory of other states. The absolute territorial integrity theory is not generally accepted, perhaps because of the potentially unjust result in severely restricting an upstream state's use of shared waters, with no such restrictions on the downstream state. See Critical Essay, supra note 259, at 142. 287. The Helsinki Rules recognize that one state's beneficial uses may compete with another state's beneficial uses, and suggest that the process of reconciling the conflicting uses may require some compensation to the state required to abandon one of its uses. See Helsinki Rules, supra note 153, art. V, at 488-91. 288. ILC Draft Articles, supra note 238, art. 8, at 78. The commentary to article 8 notes that this is a specific application of the sic utere principle reflecting the sovereign equality of states. Id. art. 8, commentary, at 83. 289. Id. at 85. Harm that is "insignificant or barely detectable" may be tolerated. Id. The ILC quotes from the commentary to article 6 adopted at its previous session: [W]here the quantity or quality of the water is such that all of the reasonable and beneficial uses of all watercourse States cannot be fully realized, what is termed a 'conflict of uses' results. In such a case, international practice recognizes that some adjustments or accommodations are required in order to preserve each watercourse State's equality of right. These adjustments or accommodations are to be arrived at on the basis of equity, and can best be achieved on the basis of specific watercourse agreements. Id. at 84. 290. 1990 ILC Report, supra note 239, arts. 26-27, at 146; McCaffrey, Fifth Report on the Law of the Non-Navigational Uses of International Watercourses; Addendum 1 at 33, U.N. Doc.A/CN.4/42 1/Add.I (1989), to be reprinted in [1989] 2 Y.B. INT'L L. COMM'N [hereinafter Fifth Report, Addendum 1] (International Law Commission, 41st sess.). An example of a human-caused water emergency is an industrial accident. 1990 ILC Report, supra note 239, art. 27, $ 1, at 146. Examples of naturally caused emergencies include floating ice or flooding. See idi 291. Such conditions include "flood or ice conditions, water-borne diseases, siltation, ero- 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 781

Thus, diversions of water or uses causing pollution are clearly contrary to international law if they cause economic harm. However, international law regarding damage to the natural environment, as well as the 292 remedies for harm to other states, is still underdeveloped.

D. Duty to Cooperate and to Inform

Under customary law, states have an obligation to cooperate in the interests of avoiding harm to another state. The arbitral tribunal in the Lake Lanoux Arbitration case293 stated this obligation as follows: [S]tates are today perfectly conscious of the importance of the confficting interests brought into play by the industrial use of international rivers, and of the necessity to reconcile them by mutual concessions. The only way to arrive at such compromises of interests is to conclude agreements on an increasingly comprehensive basis.... [T]here would thus appear to be an obligation to accept in good faith all communications and con- tracts which could, by a broad comparison of interests and by reciprocal good will, provide States with the best conditions for concluding agreements.... "294 The ILC's article 5 recognizes the right of all watercourse states to participate in any consultations on possible uses of a shared watercourse, to the extent that a particular state's use may be affected. 295 This implies that third states have a right to be involved in bilateral negotiations, if two states propose to use a river in a way that will affect the third state. The kinds of cooperation that may be involved include exchange of infor-

sion, salt-water intrusions, drought or desertification." 1990 ILC Report, supra note 239, art. 26. 292. The 1972 U.N. Declaration on the Human Environment would extend a state's obligation not to harm its neighbor to include a responsibility to cause no damage to the environment of its neighbors. Principle 21 provides that, in addition to the "sovereign right to exploit their own resources," states also have the "responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States." Stockholm Declaration on the Human Environment, in Report of the United Nations Conference on the Human Environment at 7, U.N. Doc. A/CONF.48/14 (1972) (hereinafter Stockholm Declara- tion]. For further discussion of the Stockholm Declaration, see infra notes 341-43 and accompanying text. 293. Lake Lanoux Arbitration (Spain v. Fr.), 24 INT'L L. REP. 101 (1957), digested in 53 AM. J. INT'L L. 156 (1959). In this case, Spain objected to France's plans to divert into Lake Lanoux several streams that naturally flowed into Spain for use in hydroelectric generation. 53 AM. J. INT'L L. at 156-59. After finding that Spain's water supply would not be diminished, id. at 160-61, the arbitration panel upheld France's right to divert the streams. Id at 171. 294. Id at 129-30. 295. ILC Draft Articles, supra note 238, art. 5, at 76-77. Article 9 provides for a "general obligation to co-operate" grounded on "sovereign equality, territorial integrity and mutual benefit .... " Id. art. 9, at 78. The commentary for article 9 states that "cooperation between watercourse States is important to the equitable and reasonable utilization of international watercourses [and]... also forms the basis for the regular exchange of data and information under... the draft." Id. art. 9, commentary, at 106. ECOLOGY LAW QUARTERLY [Vol. 17:741 mation, regular consultations, and decisions on issues of standards, monitoring, planning, research, and development programs. 296 A related and more recent principle would oblige a state to not only cooperate on aspects of mutual interest but also to actively notify and inform another state when events on its own territory might affect another state.297 This responsibility arises most clearly in customary law when a state plans an activity involving a shared resource that could have an adverse effect on another state.2 98 Constructing a dam or siting an industrial facility upstream that would discharge substantial waste are examples of activities which would require notification. The Helsinki Rules do not specifically address the duty to cooperate. However, in the section entitled "Procedures for the Prevention and Set- tlement of Disputes," the Rules explicitly recommend that states furnish "relevant and reasonably available information" to other basin states and to furnish notice of any construction that "would alter the regime of the basin. "299 In theory, notification affords the affected state the opportunity to respond not only with its views regarding the other's activities, but to negotiate mitigating or compensating arrangements with the acting state before a dispute arises. If a state took a unilateral action that would affect a downstream neighbor without informing that neighbor of the possible effects, it would sharply limit the possibility of reaching an ac- commodation that would be equitable for both parties. Thus, notification is necessary to maintain a river's equitable utilization, in addition to being an aspect of good neighborliness. The good neighborliness principle would also obligate states to share general information about an international river, so that basin states would be equally informed at the bargaining table. The ability of nations to accommodate climate-related changes to shared rivers may well depend on the depth of trust and the history of good faith interaction they enjoy. Scrupulous notification provides op- portunities for the types of consultation and participation that can lead to mutual trust. Thus, the duty to cooperate and to share information is singularly important in light of the uncertainty that will accompany climate change.

296. Id. at 104-05 (referring to the Economic Commission for Europe's 1987 principles on cooperation regarding transboundary waters). 297. For a summary of treaties and juridical decisions regarding the obligation to notify, see id. at 115-25. 298. Id. at 115. See generally infira notes 367-76 and accompanying text (discussing sharing of information on activities affecting a shared river). 299. Helsinki Rules, supra note 153, art. XXIX, 1-2, at 518. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 783

IV APPLYING INTERNATIONAL LAW TO CLIMATE-RELATED WATER MANAGEMENT ISSUES International law derived from treaties, general custom among states, and other sources can provide guidance whenever specific issues and procedural conflicts arise among nations. As nations resolve their difficulties, new customary law evolves for future use. As discussed earlier in this Comment, climate change will affect the flows of most international rivers, which in turn may lead to conflicts among the nations sharing those rivers. Part I identified five water management issues likely to arise under climate change. Those were: (1) Water allocation, including allocation of shortages and surpluses; (2) Water quality; (3) Minimum river flow; (4) Protection of riverine ecosystems; and (5) Flood control measures. In addition, part I identified several institutional arrangements and procedures that have been developed by nations to enable them to cope with supranational concerns. Those were: (1) Sharing of data between nations; (2) Dispute settlement procedures; (3) Procedures for amendment or adjustment; and (4) Joint development and management structures. These water management issues and institutional arrangements provided a framework for part II's exploration of the strengths and weaknesses of the legal regimes for the Nile, Ganges, and Colorado Rivers. This section uses the same framework to look more closely at customary international law, including other treaty arrangements, and at the codifications developed by the ILA and the ILC. The objective is to assess the adequacy of the guidance these sources would provide in the event of climate change. In addition, it explores the types of guidelines and institutional arrangements that may need to be developed to assist nations in their accommodations to altered circumstances.

A. Climate-Related Water Management Issues 1. Allocation of Water As the case studies reveal, river treaties tend to specify fixed amounts of water when establishing allocations of water. 3° ° There may be several reasons for this: governments are more likely to enter into the obligations of a treaty if they have certainty about the terms to which they agree, fixed allocations are easier to monitor for compliance, and

300. See supra notes 203-04 and accompanying text. ECOLOGY LAW QUARTERLY [Vol. 17:741 fixed allocations provide some guarantee of a minimum flow to a downstream nation. Fixed allocations may pose problems, however, if the flow of a river undergoes change. If climate change reduces a river's flow below the levels needed to supply the amounts specified by treaty, water allocations will have to be redetermined. If water is already scarce, as in the Nile 30 1 Basin, the situation may become volatile. The codifications of the principle of equitable utilization provide guidance by listing the factors to be considered in arriving at an equitable apportionment. 30 2 However, the factors are vague and broadly drawn. While broad concepts of equity can provide helpful flexibility when applied by domestic courts ruling on internal water disputes, such broad concepts are of limited utility where no supranational authority exists to apply equity, as is the case with international disputes. 30 3 To arrive at equitable allocations of water, sovereign states must voluntarily accept limitations on their control of the water flowing through their territories. The codifications' failure to indicate how various factors should be weighed further limits the utility of the equitable utilization principle. According to one commentator, domestic and sanitary uses of water are generally agreed to be most important, but it would be difficult to establish a general order of priorities after that since situations vary widely from river to river.3°4 Navigation has historically been given priority, but irrigation or hydroelectric power generation might be more important in some circumstances. 30 5 Both the Helsinki Rules and the ILC Draft Articles list prior or existing usage among the factors to be considered in arriving at an equitable utilization.3a 6 However, if one state is a "winner" under a previ- ously negotiated allocation, it will be unwilling to alter the existing terms, even under the changed circumstances of climate change. For example, a new comprehensive agreement for the Nile among all Nile basin states would have to reconsider current water allocations. The Nile's existing legal regime now specifies that Egypt and the Sudan have "estab- fished" rights for certain quantities.30 7 Allowing such allocations to

301. On the other hand, if climate change increases the amount of available water, a rede- termination of water allocation may be desirable. 302. See supra note 273. 303. Eagleton, The Use of the Waters of InternationalRivers, 33 CANADIAN B. REV. 1018, 1023-24 (1955). 304. Id. at 1025-26 (discussing priorities among uses). 305. Id. at 1025. 306. For text of article V, 2(d) of the Helsinki Rules and ILC Draft Article 7, 1(d), see supra note 273. 307. The 1959 Nile Agreement, which grants 48 BCM of Nile water a year to Egypt and 4 BCM to the Sudan, appears to be based on the principle of prior appropriation. 1959 Nile Agreement, supra note 87, § I, arts. 1-2. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 785 stand would favor countries with more developed uses of water, leaving other basin states unjustly stranded at a lower stage of development. The lack of concrete guidance regarding priorities among equitable uses means that equitable utilization determinations are inevitably highly politicized. In the course of negotiations over water allocations and preferred uses, national interests frequently trump equitable considerations, or become disguised in a party's weighting of factors. 30 The Ganges dispute has seemed especially prone to such manipulation. For example, an academic article published in 1969 argues that all the factors listed by the Helsinki Rules for arriving at an equitable utilization favor Bangla- desh's position that it requires the full flow of the Ganges.3°9 A rejoinder 310 article states that "all the factors ...are met in favour of India. Applying concepts of equity to such a dispute can lead to highly unpre- dictable outcomes. In the absence of customary principles determining priorities among uses, nations might build guidance into future agreements. The 1944 Colorado Treaty, for example, provides an order of preference for uses of waters shared between Mexico and the United States. 311 Advance agreement on how to weigh various factors might greatly ease the process of determining an equitable utilization of a river's waters in the event of climate-related alterations in flow. In addition, instead of fixed allocations of water, treaties could work out more flexible water sharing arrangements. One option would be to specify proportions of water shares. Proportional allocation would place nations on similar footing for dealing with increased or decreased riverflows, but could be problematic if the proportions were fixed in an inequi- table manner. Equity might require establishing minimum guarantees, or schedules of proportions based on varying riverflows. Finally, advance agreement on contingency plans for dealing with water shortages or for allocating surpluses would also help nations to accommodate unforeseen climate-related impacts.31 2

308. Caponera, Patterns of Cooperation in InternationalWater Law: Principlesand Insti- tutions, 25 NAT. RESOURCES J. 563, 569 (1985). 309. "[I]n nearly all relevant points under Article V, Helsinki Rules, there is prima facie evidence in favour of [Bangladesh] .. " Kiilz, supra note 120, at 731. Kiilz recognizes, however, that some of the points could go in India's favor if India presented its arguments fully. Id 310. Jain, supra note 122, at 44. 311. 1944 Colorado Treaty, supra note 176, art. 3; see supra note 182. 312. Hrezo, Bridgeman & Walker, Integrating Drought Planning Into Water Resources Management, 26 NAT. RESOURCES J. 141, 161-67 (1986). For an opposing point of view, see Dannilenko, InternationalLaw-making for Outer Space, 5 SPACE POL'y 321, 328-89 (1989) (arguing that it is undesireable to reach international agreement in advance of the circumstances under which such an agreement would be applied). ECOLOGY LAW QUARTERLY [Vol. 17:741

2. Maintenance of Water Quality The wastes from swelling populations, agricultural expansion, and industrial growth have made water quality an increasingly important issue in international river management.313 If climate change results in a river having less water, water quality will diminish as discharges of pollutants become less diluted. If rainfall increases, riverflows may contain more pollutants and silt from runoff. Customary law provides several relevant principles. First, under equitable utilization, a state is not to use the waters of a shared river in a way that would deny another state equitable use of those waters. 314 Sec- ond, under the principle of sic utere, the activities of one nation within its territory should not cause harm to another state.315 Both of these principles may deter some future harm-causing activities. Moreover, the principle of sic utere can help bring about compensation for harm already caused. 316 Finally, whether or not the expansive view of international rivers being watercourse systems is adopted could determine if practices affecting water quality quite distant from a river's main stem, such as agriculture or logging, might come under the principles of sic utere and equitable utilization. However, these principles do not by themselves mitigate current harm-causing activities or prevent future pollution. In the same way that concrete and enforceable legislation is required in order to curb discharge of pollutants within a country, specific agreements among states appear to be necessary. The efforts of the Rhine basin states to clean up that river's waters illustrate the need for agreements that set down specific obligations and procedures. In 1963, in response to growing concern over pollution of the Rhine, an International Commission for the Protection of the Rhine Against Pollution (ICPR) was established. 317 The agreement creating the ICPR imposed no specific duties on the participating states other than a duty to cooperate. 318 In the years following the ICPR's forma- 319 tion, Rhine pollution actually increased.

313. For discussion regarding the dispute over the quality of the Colorado River's water, see supra notes 194-200 and accompanying text. 314. See supra text accompanying notes 257-66. 315. See supra text accompanying notes 278-83. 316. See Williams, supra note 278, at 126-28. 317. Agreement On the International Commission for the Protection of the Rhine Against Pollution, April 29, 1963, 994 U.N.T.S. 3. The agreement came into force on May 1, 1965, with France, the Netherlands, Switzerland, West Germany, and Luxembourg as parties. Id at 18 n. 1. In 1976 the European Economic Community also joined the ICPR. 20 O.J. EUR. COMM. (No. L 240) 35 (1977). 318. THE INTERNATIONAL INSTITUTE FOR ENVIRONMENT AND DEVELOPMENT & THE WORLD RESOURCES INSTITUTE, WORLD RESOURCES 1987, at 187 (1987). The ICPR is es- sentially a monitoring and advisory body and has no independent decisionmaking power. Id 319. Kiss, The Protection of the Rhine Against Pollution, 25 NAT. RESOURCES J. 613, 622 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 787

Then, in 1976, the ICPR drafted two conventions, one on chemical pollution32° and one on chlorides. 321 The Rhine Convention on Chemi- cal Pollution stresses the need to address Rhine pollution via continuous and multiple measures. 322 Modeled after an EEC directive, 323 it sets up a "black list" and a "grey list" of chemicals whose discharge is to be strictly regulated by national authorities. 324 Governments were given deadlines for setting up national programs implementing the Conven- tion's objectives. 325 The quality of the Rhine's waters was improving until the 1985 Sandoz fire in Basel, Switzerland released at least 30 tons of 326 agricultural chemicals, including two tons of mercury, into the river. The chemical accident's severe blow to the effort to clean up the Rhine should not, however, obscure the progress that had been made. The specification of water quality standards and goals, via so-called black and grey lists of chemicals, is an encouraging response to the problem of international river pollution that exemplifies the rapid movement towards 327 strengthening water resources principles. To bring about improvement in the quality of the Rhine's waters, the nations sharing its basin had to agree on specific actions, timetables, and enforceable standards. In seeking to accommodate climate change, nations sharing a river similarly might build proactive standards and af- firmative duties into their agreements. Baseline water quality standards, allocations of responsibilities, timetables for adjustments, and other spe-

(1985). Studies by the ICPR found that much of the Rhine's pollution came from large cities, from chemical industrial plants and paper mills, and from mining activities. Id. at 625. 320. Convention for the Protection of the Rhine Against Chemical Pollution, Dec. 3, 1976, 16 I.L.M. 242 (1977) [hereinafter Rhine Chemical Convention]. 321. Convention on the Protection of the Rhine Against Pollution by Chlorides, Dec. 3, 1976, 16 I.L.M. 265 (1977). 322. See, e.g., Rhine Chemical Convention, supra note 320, preamble, at 243. The convention acknowledges the need to maintain water quality for environmental protection purposes by recognizing the use of the Rhine for drinking water by humans and animals and as a habitat for species of flora and fauna. Id. art. 1, 1 2, at 243-44. 323. Council Directive on Pollution Caused by Certain Dangerous Substances Discharged into the Aquatic Environment of the Community, 19 O.J. EUR. COMM. (No. L 129) 23 (1976). 324. Discharges into the Rhine of substances on the black list must be authorized in advance by responsible national authorities. Rhine Chemical Convention, supra note 320, art. 3, $ 1. National authorities can determine permissible values established by the ICPR. See id. art. 3. Discharges of substances on the grey list must also be authorized in advance by responsible national authorities, and emission standards for such discharges are set by each nation. Id. art. 6, 1 4. However, grey list substances are not subject to the limit values set by the ICPR; rather, nations are instructed only to limit discharges severely. Id. art. 6, It 1, 5. 325. See, e.g., id. art. 6, 1 2 ("Parties to this Convention will endeavor to establish within two years... national programs for reducing the pollution of the waters of the Rhine ...."). The convention also includes mechanisms for adjustment of emission limit values, id. art. 4, and provides for dispute resolution via arbitration. Id. art. 15. 326. Note, The Sandoz Spill: The Failure of InternationalLaw to Protect the Rhine from Pollution, 16 ECOLOGY L.Q. 443, 446 (1989) (authored by Aaron Schwabach). 327. Caponera, supra note 308, at 572. ECOLOGY LAW QUARTERLY [Vol. 17:741 cific guidelines could help to ensure peaceful and equitable maintenance of water quality in the event of altered riverflows.

3. Minimum Riverflows

The development of international rivers often leads to a decrease in the quantities of river water flowing downstream. In the case of the Gan- ges, riverflow was purposefully diverted. 328 For other rivers, consumptive uses - storage dams, irrigation systems, and municipal water works - "lose" water through evaporation, plant uptake, and human consumption. For instance, burgeoning urban centers and agricultural irrigation in both Mexico and the United States consume nearly all of the Colorado's flow. 329 These decreases in waterfiow inevitably affect riverine vegetation, fish, and wildlife, as well as downstream consumers. The question of whether to maintain a minimum riverflow pits the interests of upstream nations against downstream states. It also pits the interests of humans using a river against the interests of riverine ecosystems. The principles of equitable utilization and sic utere acknowledge that downstream states have a right to a fair share of a river's water. However, these principles do not provide much assistance for efforts to 330 preserve ecosystems dependent on a minimum riverflow. The leading international case acknowledging a downstream state's right to riverflow is the Lake Lanoux Arbitration.33 Spain objected to France's plans to convert Lake Lanoux into a reservoir and to divert some of its water for hydroelectric generation, on the ground that Span- ish interests in irrigation would suffer.332 Spain protested that the diversion would modify the hydrology of the drainage basin and make Spain more dependent on France.333 France assured Spain that water equal in quantity would be returned to the affected river before it crossed the border into Spain. 334 The arbitration panel upheld France's action after finding that Spain's water supply would not be diminished.33 5 The Lake Lanoux panel indicated, however, that if waterfilow to Spain would have

328. See supra note 118-20 and accompanying text. 329. In many years, no flow reaches the Gulf of California. See Gleick, supra note 42, at 24. 330. Definitions of "equitable use" focus on human-oriented uses, and provide little basis for arguing that there is a need to protect plant and animal species. See supra note 276 and accompanying text. 331. Lake Lanoux Arbitration (Spain v. Fr.), 24 INT'L L. REP. 101 (1957), digested in 53 AM. J. INT'L L. 156 (1959); see supra notes 294-95 and accompanying text. 332. Lake Lanoux Arbitration, 53 AM. J. INT'L L. at 157-58, 169. 333. Michael, The Allocation of Waters of InternationalRivers, 7 NAT. RESOURCES L. 45, 53 (1974). 334. Lake Lanoux Arbitration, 53 AM. J. INT'L L. at 170. 335. Id at 160, 171. 1990] IATERNA TIONAL RIVERS AND CLIMATE CHANGE 789 been appreciably reduced, so as to cause economic or environmental 336 harm to Spain, it might have decided against France. If climate change reduces flows, riverine ecosystems will be under additional stress at the same time that the proportion of water withdrawn for human use increases. Guarantees of minimum riverflows in international river treaties may be necessary not only to protect the interests of downstream states and human consumers, but also to protect those 7 ecosystems. 33

4. Protection of Riverine Ecosystems Environmental degradation is a concern which embraces more than water quality and minimum riverflows. In developing rivers for human uses, the fragility of ecosystems has all too often been forgotten. River treaties are no exception in their tendency to focus on the development of a river, with little consideration given to the long-term sustainabiity of a development project or to its impact on wild plant and animal species. At first glance, harm to ecosystems may not appear to affect human uses of a river. However, as the Nile case study shows, environmental impacts cannot be ignored. 338 The costs of the Aswan High Dam in terms of loss of soil fertility, diminished fishery production, and erosion of the Nile Delta are still not entirely known. Customary law regarding the rights of ecosystems to protection is still undeveloped. The expansive concept of an international watercourse system would appear to include watersheds, wetlands, and other components of a riverine ecosystem, but provides no guidance regarding whether such components should be protected. The principle of sic utere does imply that one state's actions should not cause harm to another state's environment, but does not help to protect a vulnerable ecosystem against harm caused within the state itself. Recognition that the natural environment is a resource deserving legal protection is slowly developing in international river law. Many of the earliest international agreements regarding the riverine environment were designed to protect fisheries for human use.339 Later river agree-

336. See id at 160-61. The panel noted that Spain had not argued that its environment would be harmed. Id 337. Note, however, that such a guarantee might conflict with the need to keep allocations of water flexible, in case future adjustment is needed. For example, after the enactment of the Colorado Compact, the Colorado River's flow was discovered to be insufficient to meet both the guarantee to the lower states and the expected reserve for upper basin development. See M. RELSNER, CADILLAc DESERT 130-31, 271-73 (1986). 338. See supra text accompanying notes 70-74. 339. McCaffrey, Fourth Report on the Law of the Non-Navigational Uses of International Watercourses, Addendum 1 at 9, U.N. Doc. A/CN.4/412/Add.1 (1988), to be reprinted in [1988] 2 Y.B. INT'L L. COMM'N [hereinafter Fourth Report, Addendum 1] (International Law Commission, 40th sess.). ECOLOGY LAW QUARTERLY [Vol. 17:741

ments recognize the need to protect water quality from industrial pollutants and human wastes and, more recently, the need to preserve natural species and the ecosystems on which they depend. 340 The Stockholm Declaration of 1972 is a landmark among international instruments in its fundamental recognition of the need to protect the environment.34' As in earlier river agreements, environmental rights are stated in human terms.342 Principle 2 provides as follows: "The natural resources of the earth including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safe- guarded for the benefit of present and future generations through careful planning or management, as appropriate. '343 The 1986 report of the Experts Group on Environmental Law of the World Commission on Environment and Development 344 seeks to extend international legal principles concerning the environment, in response to the grave problems documented by the Commission.34 5 The Experts Group proposes a number of "[g]eneral principles concerning natural resources and environmental interferences," including the principle that states have a duty to "maintain ecosystems and related ecological processes essential for the functioning of the biosphere... [and] maintain maximum biological diversity by ensuring the survival and promoting the conservation in their natural habitat of all species of fauna and flora. ....,,346 The ILA has not yet taken specific action via its Helsinki Rules to recognize the rights of natural riverine ecosystems. But the ILC Draft Articles recognize the need to protect natural ecosystems, both implic- 347 348 itly and explicitly. In addition, in 1990 the ILC adopted four arti-

340. For example, the 1978 Agreement on Great Lakes Water Quality states: "The purpose of the Parties is to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem." Agreement on Great Lakes Water Quality, Nov. 22, 1978, Canada-United States, art. 2, 30 U.S.T. 1383, 1387, T.I.A.S. No. 9257. The Rhine Chemical Convention also recognizes the use of the Rhine as a habitat for species of flora and fauna. Rhine Chemical Convention, supra note 320, art. 1, 2. 341. Stockholm Declaration, supra note 292. For commentary on the Stockholm Declara- tion (as well as the text of the Declaration), see Sohn, The Stockholm Declaration on the Human Environment, 14 HARV. INT'L L.J. 423 (1973). 342. Principle 1 states that people have "the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being .... Stockholm Declaration, supra note 292, at 4. 343. Id. 344. Also known as the Brundtland Commission, after the name of its chairperson, Dr. Gro Harlem Brundtland. Fourth Report, Addendum 1, supra note 339, at 42 n.21 1. 345. Id. at 42-43. 346. Id. at 43 (citing General PrinciplesConcerning Natural Resources and Environmental Interferences, art. 3, in ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT: LEGAL PRINCIPLES AND RECOMMENDATIONS 25 (1987) (adopted by the Experts Group on Environmental Law of the World Commission on Environment and Development)). 347. The ILC's Draft Article 6, on "Equitable and Reasonable Utilization and Participa- tion," provides that the goal of optimum utilization is to be attained in a manner "consistent 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 791 cles explicitly dealing with environmental protection, pollution, and related matters. 349 Under article 23, states would have a duty to "prevent, reduce and control pollution" of an international river that may "cause appreciable harm" to the river's "living resources. ' 350 There are significant attempts to develop protective measures, but they are still "soft" law.351 More customary law explicitly recognizing natural ecosystems as interests to be weighed and protected is urgently needed, given the stresses that riverine ecosystems will be under if climate changes. Nations can begin by voluntarily protecting the ecosystems within their territories, so that a history of state practice emerges such that other nations will begin to feel bound to follow suit. One innovative effort is the collaboration between the United Na- tions Environment Programme (UNEP) and five of the nations sharing the Zambezi River basin, known as ZACPLAN. 352 ZACPLAN is an effort to create a multilateral, multi-issue mechanism for sustainable basin management. 353 The main elements of the action plan include: (a) environmental assessment; (b) environmental management; (c) environmental legislation; and (d) supporting measures. 354 One of ZACPLAN's strongest points is its recognition of the interrelationship between envi- with adequate protection" of the watercourse. ILC Draft Articles, supra note 238, art. 6, 1. 348. The commentary to article 8, on "Obligation Not to Cause Appreciable Harm to Other Watercourse States," lists the environment, in addition to public health, industry, and property, as something that could be adversely affected. Id. art. 8, commentary. 349. 1990 ILC Report, supra note 239, arts. 22-25, at 145-46. The four articles cover pollution of international watercourses, protection of the ecology of international watercourses, introduction of alien species, and protection of marine environments. Id Article 22 obliges states to "individually or jointly, protect and preserve the ecosystems of international watercourse[s] [systems]." Id (brackets in original). Article 24 requires states to "take all measures necessary to prevent the introduction of species, alien or new, into an international watercourse [system] ... resulting in appreciable harm to other watercourse States." Id (brackets in original). Finally, article 25 requires states to "individually or jointly.., protect and preserve the marine environment, including estuaries." Id. 350. Id. at 20. 351. See supra note 228 and accompanying text. 352. Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, May 26-28, 1987, Botswana-Mozambique-Tanzania-Zambia- Zimbabwe, 27 I.L.M. 1109 [hereinafter ZACPLAN]. ZACPLAN was developed under the auspices of UNEP's program on Environmentally Sound Management of Inland Waters (EMINWA). Id annex I, 2. Shortly after UNEP's launching of the EMINWA program, it was approached by the governments of Botswana, Zambia, and Zimbabwe for help. Id. annex I, $ 3. For its first EMINWA project, UNEP decided to assist the Zambezi basin governments to develop the means to cooperate regionally on the sustainable development of the Zambezi. Id. 353. Memorandum from K. Salewicz and A. McDonald, International Institute for Ap- plied Systems Analysis, Laxenburg, Austria, at 3 (Aug. 2, 1988) (discussing trip to Africa in 1988) [hereinafter IIASA Memorandum]. 354. ZACPLAN gives high priority to eight projects it calls "ZACPRO's" and calls for their implementation in 1987-89. ZACPLAN, supra note 352, annex I, app. I(A). For instance, ZACPRO 6 calls for the development of an integrated water management plan for the Zambezi basin that is to assess and utilize water resources for sustainable development. Id ECOLOGY LAW QUARTERLY [Vol. 17:741 ronment and development, and the need for nations sharing a river basin to integrate environmental considerations into planning for the utilization of its waters. 355 ZACPLAN also addresses water quality, although pollution is not yet considered a problem for the Zambezi. 356 It calls for cooperation in devising land-use practices, watershed management, soil conservation, and development patterns.357 Specific joint development projects, however, apparently will require separate agreements among the nations involved, as ZACPLAN contains no specific provisions for such projects. The Zambezi basin nations have a unique opportunity to be innovative and progressive in shaping regional cooperation towards maintaining environmental integrity and achieving sustainable development. How- ever, ZACPLAN is vague about how its projects are to be implemented. Much will depend upon the commitment of individual nations. Still, the experience of cooperation itself through ZACPLAN may provide an important model for nations building the foundations of trust required for protecting shared natural ecosystems and for accommodating changed circumstances.

5. Flood Control Measures Both the Helsinki Rules and the ILC Draft Articles address flood 35 8 control. The articles on flood control related to the Helsinki Rules would oblige basin states to cooperate regarding flood control measures "in a spirit of good neighbourliness. '' 35 9 Cooperation "may" include col- lection and exchange of data, as well as planning, designing, and execut- ing flood control measures.36 Nations are to communicate information about heavy rainfall or other events likely to create floods to their neighbors, 361 but otherwise upstream nations are under no obligation to pay compensation for damage caused by floods unless they acted "contrary to 362 what could be reasonably expected under the circumstances.

355. Environmental assessments are to include information on living and nonliving resources and ecosystems endangered by environmental degradation. Id annex I, 21. Envi- ronmental management is to encompass the strengthening of environmentally sound water resource development as well as cooperation in measures to control degradation of the natural resource base. Id. annex I, 29. 356. IIASA Memorandum, supra note 353, at 10. However, agricultural chemicals and DDT from tsetse fly control programs may be contaminants in certain areas. Id. at 13. 357. ZACPLAN, supra note 352, annex I, 1 29(/). 358. IWRL Report, supra note 233. 359. Id. art. 2. 360. Id. art. 3. 361. Id. art. 4. 362. Id. art. 7. Article 5 provides that basin states "should maintain in good order their portions of water courses," id. art. 5, 2, and also says that no state "shall be prevented from undertaking schemes of drainage... " id art. 5, 3, but in sum these articles do not provide for an upstream state to have a positive obligation to carry out flood control measures. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 793

In 1990, the ILC adopted two draft articles concerning water-related hazards and emergency situations which would oblige states to take flood control actions. 363 Article 26 provides for a general duty among watercourse states to cooperate "to prevent or mitigate conditions that may be harmful to other watercourse States . . such as floods or ice conditions, water-borne diseases, siltation, erosion, salt-water intrusion, drought or desertification. '"364 To fulfill this duty, states are regularly and on a timely basis to exchange relevant data and consult on the planning and implementation of joint measures. 365 The final test, of course, is whether states in their actual practice accept a broader obligation to prevent downstream water-related hazards. If climate change brings more rainfall and runoff to an international river basin, upstream states could do much to prevent increased flows from causing harm to their downstream neighbors. Hence, developing this obligation may be an important step for nations seeking to mitigate the impact of climate change.

B. InstitutionalArrangements for Accommodating Change

As the preceding subsection discloses, customary international law provides broad guidance rather than firm substantive rules when applied to specific water management issues. For countries seeking to adapt to climate change, these principles are thus problematic. Indeed, because each international river is unique in its geography and its political situation, universalized legal rules for solving water management issues may not be feasible.366 A better option for nations facing potential water management conflicts may be to set in place specific but flexible procedures and institutional arrangements guided by the experiences of other nations.

1. Sharing of Data Among Nations

Effective and efficient systems of information gathering, processing, and exchange among nations would greatly aid the task of detecting climate change and then responding to its impacts. But these concepts are not universally accepted. 367 Egypt, for example, keeps confidential its

363. 1990 ILC Report, supra note 239, arts. 26-27, at 146. 364. Id. art. 26. 365. Id. art. 27. 366. R. BILDER, THE SETTILEMENT OF INTERNATIONAL ENVIRONMENTAL DISPUTES 25- 26 (1976). 367. Clearly, a state may have an incentive not to notify, so as to retain freedom to act unilaterally. For instance, Pakistan first learned of India's intention to build the barrage at Farakka from reports in the Indian press. Kiilz, supra note 120, at 720. ECOLOGY LAW QUARTERLY [Vol. 17:741 data regarding actual amounts of water used.3 68 Similarly, India classi- 369 fies much of its water resources data as military secrets. The Helsinki Rules take a conservative position in regard to notification and information sharing. They recommend that states furnish "relevant and reasonably available" information to each other about the waters of a shared river and, in particular, "notice of any proposed construction or installation which would alter the regime of the basin in a way which might give rise to a dispute .... -"370 This weak provision may not advance the general principle of notification and information sharing, but it recognizes that the purpose of notification is to let the affected state 371 assess the impact and make its views known. The ILC Draft Articles state that watercourse states shall exchange data "on the condition of the watercourse [system], in particular that of a hydrological, meteorological, hydrogeological and ecological na- ture .... -"372 Articles 11-20 detail how states should notify and consult each other if any measures planned within their territories could have an "appreciable adverse effect" on other basin states. 373 The articles provide for notification of the affected state, then a six-month comment period during which time the notifying state is to suspend implementation of the measures, and finally a six-month period of consultation and negotiation 374 if the affected state has reason to object to the measure. In contrast to this lengthy process of negotiation, the ILC Draft Articles on "harmful conditions and emergency situations" would require states to act with great urgency to notify other potentially affected states if an emergency situation originated within their territories. 375 The

368. Van Tuijl Interview, supra note 101. 369. Kaye, supra note 136, at 17. 370. Helsinki Rules, supra note 153, art. XXIX, 1, 2, at 518. 371. The rules provide that "[a] State providing the notice referred to... should afford to the recipient a reasonable period of time to make an assessment of the probable effect of the proposed construction or installation and to submit its views thereon to the State furnishing the notice." Id. art. XXIX, 3, at 519. Unless the other state's interests are "substantially affected," it is not clear whether states are under a duty to simply share information. 372. ILC Draft Articles, supra note 238, art. 10, 1 1, at 78. 373. Id. arts. 11-20, at 79-82. 374. If the affected state finds that the proposed measures would be counter to the principles of equitable utilization and the obligation not to cause appreciable harm, it is to enter into "consultations and negotiations" with the notifying state "with a view to arriving at an equitable resolution of the situation." Id. art. 17, at 81. If a state has not been notified but has reason to believe that another watercourse state is planning measures that would affect it, it can request that it be notified, so that this procedure of commentary, consultation, and negotiation can commence. See id. art. 18, at 81. 375. In addition to notification, this would include a duty to "immediately take all practi- cable measures necessitated by the circumstances to prevent, mitigate, and eliminate harmful effects of the emergency." 1990 ILC Report, supra note 239, art. 27, 1 3, at 146. In addition, states would be expected to jointly develop and implement "contingency plans for responding to emergencies .. " Id. art. 27, 4, at 146. The measures use standard diplomatic procedures, but these articles go further than usual in requiring such planning. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 795

Special Rapporteur's report accompanying these draft articles mentions global warming and climate change as possible natural phenomena that would increase the need for states to cooperate on planning for emergen- 376 cies or disasters. If these concepts become rooted in the practices of states, they could strengthen the spirit of cooperation and mutual aid that will be needed to contend with the impacts of climate change and pave the way for contingency planning among watercourse states. In building the mechanisms required to accommodate climate change, nations should consider de- lineating the types of information that states should be under an international obligation to share.

2 Dispute Settlement Procedures The obligation to resolve disputes peacefully is a fundamental pre- cept of the Charter of the United Nations and is hardly unique to international rivers. But international rivers have been the sources of conflicts over the centuries, and many are highly volatile today.377 This may explain why the codifiers of international river law devote sizable sections to spelling out the responsibilities of basin states to settle differences peacefully. 378 Well-formulated procedures for dispute resolution may be particularly necessary in the case of climate change, since rapid changes to the flows of international rivers are likely to engender a number of disputes among nations sharing an international river. The Helsinki Rules lay down a number of principles and guidelines for the prevention and peaceful settlement of disputes. 379 According to 38 0 Article 30, states "should" seek to solve disputes through negotiation. After "measures stipulated to in treaties" and "negotiation," the recom-

376. Fifth Report, supra note 241, at 7. 377. See Cowell, Next Flashpoint in Middle East Water, N.Y. Times, Apr. 16, 1989, § 1, at 1, col. 3. 378. Articles XXVI-XXXIV of the Helsinki Rules cover dispute resolution. Helsinki Rules, supra note 153, arts. XXVI-XXXIV, at 516-531. The ILC will be determining the dispute resolution section of the Law of the Non-Navigable Uses of International Water- courses in 1991. Fourth Report, supra note 239, at 6; see McCaffrey, Sixth Report on the Law of the Non-Navigational Uses of InternationalWatercourses, Addendum, at 29-38, U.N. Doc. A/CN.4/427/Add.1 (1990) (hereinafter Sixth Report, Addendum]. For further discussion of dispute settlement procedures, see generally R. BILDER, supra note 366, and Alheritiere, supra note 217. 379. States have a "primary obligation" to resort to the means of dispute settlement laid down in "applicable treaties binding upon them." Helsinki Rules, supra note 153, art. XXVIII, 1 1, at 518. 380. "[M]aximum utilization of an international drainage basin can be more effectively secured through joint planning[;] ... co-operative management of the basin (is] greatly prefera- ble to adjudication of each source of friction .. " Id. art. XXX, comment, at 522-23. Com- pare article XXX's "should seek a solution by negotiation," id. art. XXX, at 522, with article XI's obligation to negotiate if a state causes pollution affecting another state. Id. art. XI, 2, at 501. ECOLOGY LAW QUARTERLY [Vol. 17:741

mended order of dispute resolution procedures to follow is mediation,3 81 conciliation, 3 2 and submitting disputes to an arbitral tribunal.38 3 The ILC Draft Article provisions covering procedures for resolving disputes 3 4 was proposed by the Special Rapporteur in 1990. 8 The major question is whether nations will consent to such procedures in the absence of specific articles in the river treaties to which they are parties. The efforts of the ILA and the ILC to codify procedures of notification and negotiation are important. But even more important will be instances where nations agree to forego diplomatic stalemate and to submit voluntarily their disputes to dispute settlement procedures.

3. Ability to Adjust Treaty Obligations Nations' ability to adjust their contractual relations with other states and their uses of international rivers will also be important if climate change occurs. The general rule is that a "treaty may be amended by agreement between the parties. ' 385 This would require the same types of lengthy diplomatic negotiations and ratification procedures as the treaty itself. Rapid climate change may not permit this. The Helsinki Rules do not spell out how to change a river agreement, should circumstances change. The comment to article 7 says that "flexibility and future readjustment" is "implicit in the principle of equitable utilisation [sic]." 386 However, the lack of concrete guidance about how such readjustment should occur gives this call for flexibility limited value. In the ILC Draft Articles, a series of provisions covering notification, commenting, and negotiation could serve as guidelines for adjusting agreements. 38 7 The procedure uses well-established diplomatic methods of dealing with differences among nations. However, diplomatic negotiation does not always enable watercourse states to resolve differences where the impacts of unilateral measures carried out exclusively within

381. Id. art. XXXII, at 527. The comment points out that mediation requires two states acting jointly, but that one state can unilaterally seek the "good offices" of an outside party to step in and help bring about a resolution. Id. art. XXXII, comment, at 527. The World Bank's role in bringing about resolution of the dispute between India and Pakistan over the Indus Basin in 1960 is given as an example. Id. at 527-28. 382. Id. art. XXXIII, at 528. 383. Id. art. XXXIV, at 529. The tribunal could be an ad hoc arbitral tribunal, a permanent arbitral tribunal, or the international Court of Justice. Id. 384. Sixth Report, Addendum, supra note 378, at 29-38. 385. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, reprinted in 63 AM. J. INT'L L. 875 (1969). 386. Helsinki Rules, supra note 153, art. VII, comment, at 492. For example, the Helsinki Rules state that "[a] basin State may not be denied the present reasonable use... to reserve for a co-basin State a future use .. " Id. art. VII, at 492. 387. See ILC DraftArticles, supra note 238, arts. 11-20, at 79-82; supra notes 372-76 and accompanying text. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 797

one state's territory occur in another state's territory, as the Ganges case 388 study shows. The commentaries to the ILC Draft Articles indicate a reluctance to specify how arrangements should be changed. This could reflect a fear of becoming mired in political quicksand. It could also derive from a fear that making treaties too easy to amend would have a destabilizing effect by lessening nations' sense of obligation to hold to their promises. Yet, a rigid adherence to treaty provisions that are no longer equitable because of the impacts of climate change may also be destabilizing to the international order. Given the likelihood that climate change will require adjustments and amendments to the legal regimes of shared rivers, it seems vital that international codification efforts become bolder in exploring how nations might arrive at such adjustments peacefully. Building sufficient adaptability into river agreements to cope with climate change variables may be difficult. When nations work out formal bases for agreement, the intent is to achieve as much certainty as possible. Each nation wants to know what it will be gaining and what it will be giving away. Further, the more specific an international agreement is, the easier it is for participating nations to move past rhetoric to enactment. Thus, the need for nations to have specificity and completeness in their formal arrangements with other nations clashes with the uncertainty and need for flexibility presented by the uncertain state of knowledge about climate change. In order to accommodate climate change and still achieve as much certainty as possible, nations might concentrate on procedures and mechanisms for adjusting or recalibrating their agreements with other basin states. Setting down definitions specifying what constitutes climate change38 9 and when adjustments should be made would greatly help nations sharing a river basin.39° A definition could establish parameters for measuring long-term trends, including what weather data to monitor (so

388. More than thirteen years after the 1977 Ganges Interim Agreement was signed, for instance, India and Bangladesh have still not been able to come to agreement on how to manage the impacts of the Farakka barrage. See supra note 143 and accompanying text. 389. One climatologist defines weather ss the "instantaneous, local state of the atmosphere whereas climate is a time average.., of weather variables taken over a period greater than a month." Schneider, Food and Climate: Basic Issues and Some Policy Implications, in WORLD CLIMATE, supra note 41, at 58 (emphasis in original). After a caveat about the need to specify the length of the time period, he goes on to define climate change as "a difference in the climatic statistics from one averaging period to the next." Id. Thus, detecting climate change requires comparing averages of weather for two different time periods. See id. 390. A study of U.S. drought planning in state-level water management programs, Hrezo, Bridgeman & Walker, supra note 312, at 141-67, found that developing well defined conditions for declaring a water emergency was second in importance only to designating a government planning authority. Id at 141. It reported that failure to adequately delineate when to implement (and terminate) a drought response plan "could create situations in which administrators postpone action in order to avoid conflict with user groups .... Id. at 164. This would lessen protection over water supplies. Id. On the other hand, specific conditions provide users with ECOLOGY LAW QUARTERLY [V€ol. 17:741 that monitoring is uniform among basin nations), length of time periods to be compared, and "thresholds" to indicate when a weather pattern is 391 long-term instead of transient. On the other hand, technical specifications that are too detailed have a tendency to make an agreement overly rigid. Even without climate change, river agreements in the past have needed adjustments. Rather than draw up entirely new treaties, which may be impossible to achieve once a crisis occurs, states should build in procedures for periodic review and adjustment. These could include specification of "triggers" - mag- nitudes of climate change that would activate treaty adjustments - or time schedules setting out when the agreement should be reviewed. The role of joint river management institutions to monitor data and ascertain when adjustments would be required also needs to be explored.

4. Joint Basin Development and Management Structures The first international organization in history was formed in 1815 to regulate river traffic on the Rhine. 392 The Central Commission for the Navigation of the Rhine, composed of one representative from each basin state, still functions today, and the advantages of such joint river management are widely acknowledged. 393 Indeed, the ongoing cooperation necessary to bring about equitable utilization of a river may require joint river management. As one commentator points out, equitable utilization "virtually implies the need to establish an agency to oversee the disposi- 4 tion of water resources. '39 Joint river management structures commonly come into being through treaty or some similar constituent instrument. The constituting document sets forth the explicit rights and duties of the individual states, 395 as well as the authorities of the agencies themselves. The effectiveness of a particular agency may depend on how much rule-making and administrative power it has, which in turn depends on the willing- the information they need to make contingency plans and investment decisions. Id. at 167. Among the indices of drought used by states in the U.S. are instream flows, the Palmer Index, evaluation of historical data in terms of user needs, the number of days of reservoir supply remaining, and groundwater levels. Id. at 165. A study of drought in Kenya used soil moisture levels to define drought, and concluded that drought can occur either because of insufficient supply of water (rainfall deficit) or because of excessive demand (expanded agricultural activity). Palutikof, Farmer & Wigley, Strategies for the Amelioration of Agricultural Drought in Africa, in PROCEEDINGS OF THE TECHNICAL CONFERENCE ON CLIMATE - AFRICA 228, 231, 237-38 (World Meteorological Organization Pub. No. 596, 1982). 391. For instance, a "threshold" could be a certain type of change in precipitation patterns, or in temperature averages. 392. Kiss, supra note 319, at 620. 393. See van der Veen, Facts and Figures on Rhine Pollution, 9 INT'L Bus. LAW. 41, 41-42 (1981). 394. Michael, supra note 333, at 62. 395. F. KIRGIS, supra note 244, at 76. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 799 ness of the participating states to divest themselves of sovereignty and to empower the joint river agency. 396 Some governments hesitate to grant supranational authority to joint commissions. 397 Additional difficulties may arise when the joint agencies seek to coordinate their actions with 398 counterpart national agencies. The Central Commission for the Navigation of the Rhine is an example of an agency which has extraordinarily broad powers, including the authority to formulate mandatory regulations for Rhine navigation, 399 enforceable by procedures before special Rhine Navigation Tribunals. Other joint river agencies, such as the Nile River's Permanent Joint Technical Committee, have far fewer authorities. 400 The ILA's Helsinki Rules recognize the important functions that joint river agencies may fill in the management of shared basins, 4° 1 but do not explicitly recommend creating such joint agencies. However, in 1976 the ILA passed a "Resolution on International Water Resources Administration" 40 2 which advises cobasin states to establish an international water agency "[w]ith a view to implementing the principle of equitable utilization ....,,403 Among the functions and powers recognized as appropriate for a joint river agency: (a) advisory, consultative, coordi- nating, or policymaking; (b) executive, including carrying out studies and overseeing construction and operation; (c) regulatory; and (d) a judicial 4°4 function, such as arbitration or dispute settlement. A joint river management structure could be the most effective way of providing the flexibility needed to successfully accommodate climate change. The International Joint Commission (IJC), established in a 1909 treaty and responsible for managing waters shared by Canada and the United States,40 5 may be one joint river agency with the requisite flexibil-

396. See id. at 211. 397. Hayton, Report on the DakarMeeting of InternationalRiver Commissions, 23 NAT. RESOURCES J. 441, 444 (1983). 398. Id. 399. Kiss, supra note 319, at 620. 400. See supra note 99 and accompanying text. 401. For instance, article XXXI recommends that basin States refer a "question or dispute" to a joint agency. Helsinki Rules, supra note 153, art. XXXI, 1 1, at 524. A comment accompanying article XXXI emphasizes the "creative function" of a joint technical agency in planning how a basin is to be utilized. Id. art. XXXI, comment (a), at 524. 402. Resolution on InternationalWater Resources Administration, in 1976 REPORT OF THE FIFrY-SEVENTH CONFERENCE-MADRID xxxvii-xli (1978) (International Law Association) [hereinafter Water Resources]. 403. Id. art. 2(1). An annex to the resolution gives guidelines on the elements that states should consider in establishing an international water resources administration, including form and duration, procedures for decisionmaking, territorial competence, purposes of such a joint administration, and how it should be financed. See Guidelines for the Establishment of an International Water Resources Administration, in D. CAPONERA, supra note 229, at 309-11. 404. Water Resources, supra note 402, art. 5. 405. Treaty Relating to Boundary Waters and Questions Arising Between the United States and Canada, Jan. 11, 1909, Canada-United States, art. VI, 36 Stat. 2448, T.S. No. 548, ECOLOGY LAW QUARTERLY [Vol. 17:741

ity. This bilateral organization has been given considerable authority over the years to negotiate transboundary water projects, water quality controls, and other problems. 4" 6 The IJC acts only when it receives ap- plications under the Boundary Waters Treaty.407 Most remarkably, it has set up structures to institutionalize participation among citizens and local, state, provincial, and federal agencies. Twelve regional boards of control, managed on a continuing basis by local government representatives from the United States and Canada, oversee joint water projects. 408 Via reports, minutes, and other proceedings, it has established a solid record of cooperative problem-solving between the two nations.4 9 Establishing a joint basin authority is no guarantee that a river will be utilized equitably and harmoniously. The issue of information and data exchange may be one of the biggest sticking points for interstate cooperation. 410 Calculating and then apportioning benefits and costs is another issue which poses practical and political difficulties. 41' For some river basin commissions, particularly those in developing countries, lack of resources and qualified personnel hamper effective river management.41 2 Directors appointed because of their political connections rather than professional or technical expertise can also undermine the process of joint river management. 413 In addition, joint river management institutions must be able to balance local and national interests

reprinted in Legislative Texts, supra note 87, at 260 [hereinafter Boundary Waters Treaty]. 406. Caponera, supra note 308, at 580. The IJC's original purpose was to resolve water- related controversies between the two countries, but over time it has taken on wider issues. Id. Today it investigates, makes proposals for, and approves all projects representing new uses of water. Id. In addition, it formulates standards of conduct. Id. 407. Article IX provides for either nation to refer questions to the IJC for examination. Boundary Waters Treaty, supra note 405, art. IX. The UC reports back to both nations, but does not decide the question unless both nations consent. Id. art. X. 408. INTERNATIONAL JOINT COMMISSION, 1983-1984 ACTivmEs REPORT 32-72 (n.d.). 409. See Bilder, Controlling Great Lakes Pollution: A Study in United States-Canadian Environmental Cooperation, 70 MICH. L. REv. 469, 518-20 (1972). 410. Discussion of state obligations to exchange information and data "brought forth the most heat" at the 1981 Dakar Meeting of International River Commissions. See Hayton, supra note 397, at 445. Downstream states insisted such exchange was already a firm international obligation, while upstream states declared a duty arose only through agreements between the affected states. Id. Delegates could agree generally, however, that exchange of data was "a prerequisite to basin-wide planning and to the establishment of useful cooperative arrangements .... Id. at 447. 411. Id. at 446. 412. Okidi, supra note 65, at 658. In addition to lack of qualified managers and engineers, Okidi lists other institutional problems hindering development of river basins in developing countries, including lack of logistical support for agricultural field agents and "a lack of understanding of farmers' needs and their participatory role in decision-making." Id. 413. Id. at 659-60. Okidi cites "misuse of office, unfair enrichment, misappropriation of resources, and negligence of the assigned responsibilities" as well as collapse of morale among professional staff as being among the problems that can result when high-level positions in a joint river management institution are politicized. Id. at 660. According to Okidi, the poor performance of the Niger Basin Authority's executive secretariat may be due to mismanage- ment by a politically powerful executive secretary. Id. 1990] INTERNATIONAL RIVERS AND CLIMATE CHANGE 801 competing for a river's resources and yet maintain international integrity. When basin states have reciprocal interests, it can be easier to negotiate tradeoffs and to come to mutually beneficial agreements. 4 14 A major problem facing many joint river agencies may be the lack of authority to make decisions that are binding on basin states.415 Most nations still make critical decisions about joint river management through time-consuming diplomatic negotiations. However, ordinary diplomatic mechanisms will be hard pressed to deal with the volume of decisions that climate change will bring. Joint river management institutions could facilitate decisionmaking, if given sufficient resources and independent authority. The amount of rulemaking power granted the agency and the extent of cooperation among basin states determines the effectiveness of joint river management. 416 Establishing formal mechanisms for cooperating in the management of an international river will be critical in the event of climate change, because they provide the process through which adaptation may take place. Scrupulous recordkeeping, honest disclosures and notifications, and good faith efforts to accommodate the concerns of fellow riparians are ways in which nations can act now to build the atmosphere of cooperation and the procedures that will be required for successful adjustments to climate change.

CONCLUSION Customary international law by itself does not provide adequate guidance for the water management problems most likely to arise in the case of climate change. As the current Special Rapporteur for the Interna- tional Law Commission observes, "no amount of codification or general recognition of legal principles is going to solve specific political

414. See generally, LeMarquand, Politics of International River Basin Cooperation and Management, 16 NAT. RESOURCES J. 885, 899 (1976) (international river basin organizations are most innovative and effective when there are reciprocal interests in the outcome). The United States and Mexico were deadlocked over the Colorado salinity problem, for example, until Mexico's President visited Washington and made a personal plea to the U.S. Congress and President Nixon. Id. at 896. 415. See generally Parnall & Utton, The Senegal Valley Authority: A Unique Experiment in InternationalRiver Basin Planning, 51 IND. L.J. 235 (1976) (discussing how the Senegal River Authority is an exception to this basic tenet because it does contain the ability to implement its decisions). 416. At the 1981 Dakar Meeting of International River Commissions, delegates concluded that some cooperating states need to provide their international river and lake organizations with both competence and capability to deal effectively with the existing and impending demands for improved water resources development, use, and protection, by legal and institutional arrangements that do not deprive the Governments of their final role in determining policy and controlling the actions of their agencies. See U.N. DEP'T OF TECHNICAL CO-OPER- ATION FOR DEVELOPMENT, NATURAL RESOURCES/WATER SERIES No. 10, EXPERIENCES IN THE DEVELOPMENT AND MANAGEMENT OF INTERNATIONAL RIVER AND LAKE BASINS at 14, U.N. Doc. ST/ESA/120, U.N. Sales No. E.82.II.A.17 (1983). ECOLOGY LAW QUARTERLY [Vol. 17:741 problems. ' 417 In the end it will be the formal agreements and the institutional arrangements in place that will aid nations to adapt to changes in the rivers they share. However, if the treaties examined in this Comment are at all representative, the ability of current formal agreements to respond to changing conditions is doubtful. Given the possibilities of conflict over scarce resources, and the magnitude of climate-related impacts that will occur in a relatively short time, it is important that nations begin now to consider how to build methods for coping with climatic change into their river agreements. Without processes for developing law to cover unexpected contingencies, the impacts from rapid climate change may well tax relations between nations before appropriate customary law has evolved. If nations use international law to protect their narrow self-interests, then nations at a geographical disadvantage will suffer disproportionately from the impact of global warming. On the other hand, international law has the potential to help nations build agreements transcending traditional notions of sovereignty. That will require the nations sharing a river basin to perceive themselves as members of a region or "social" community, and allow themselves to be self-regulated in the interest of equity for all.418 National territorial interests may have to give way to a recognition of the importance of geographical regions and the need to preserve ecosystems as the basis for human survival. In the past, international law has been slow to address problems involving shared resources and environmental protection. Ironically, the changing environmental conditions brought on by global warming will compel the development of more flexible international agreements and institutional arrangements that can adequately manage and protect natural resources undergoing change. Even if climate change is not as severe as projected, the international community will only gain by setting in place the institutions and mechanisms for such cooperation now.

417. McCaffrey, supra note 246, at 262. 418. Caponera, supra note 308, at 568.