Water as a Human Right: The Palestinian Occupied Territories as an Example

This paper deals with water as a human right. It examines several international agreements which refer to water as a human right to review whether these agreements are legally binding to states that signed them and/or became members to them, and whether water is considered in these instruments as a ‘human right’. These documents pertain to both branches of international law, in time of peace and in time of war. The paper then examines the ‘status of water’ in the Palestinian Territories occupied by Israel since 1967 in order to evaluate Israel's attitude towards water in these territories and whether it respected the right of the Palestinian population to their water rights.     

黄河流域初始水权配置优先位序初步研究

用水浪费和水污染主要缘于水权缺位。为了解决黄河流域部分地区用水浪费与日趋严重的水污染问题,提高水资源的利用效率,实现水资源的可持续利用,以用水目的为标准对各类用水的级别进行了划分,对黄河流域初始水权配置的优先位序进行了界定;按照新制度经济学关于正式约束与非正式约束必须相容的原理,初步研究了黄河流域初始水权配置优先位序的规则。研究分析认为,根据以用水目的为标准确定的初始水权配置优先位序为“确保用水、基本情景用水、高情景用水”,初步确定的初始水权配置优先位序的规则为：当两个以上用水户的用水级别相同,但用水目的不同时,适用以用水目的为标准确定优先位序;当两个以上用水户的用水级别和用水目的均相同时,适用时间优先或地域优先等非正式约束优于无习惯用水权的用水户;当两个以上用水户的用水级别与用水目的均相同,并且均适用时间优先、地域优先等非正式约束时,那么适用先占用原则优于地域优先原则;当两个以上用水户的用水级别、用水目的、适用的非正式约束均相同时,可适用特殊规则。     

水资源危机与国际争端

全球的淡水资源占水资源总量的25%,人类可利用的占淡水资源的0.26%,而且地域、时空分布极不均衡。近年来,水荒频繁出现,因水短缺及权属问题引发的国际争端时有发生。为避免或减少这种争端,国际间应共同制订国际河川开发利用的通用规则。     

A new transboundary freshwater dispute before the International Court of Justice

On 6 June 2016 Chile submitted its long-standing dispute with Bolivia concerning the Silala/Siloli watercourse to the International Court of Justice. Since 1997 Bolivia has contended that the watercourse is not international and that it therefore belongs exclusively to Bolivia. In its application, Chile requested that the court “declare that the Silala River system is in fact and in law an international watercourse whose use by Chile and Bolivia is governed by customary international law”. This case has the potential to produce a landmark decision in the international water law field since it is the first time that a dispute concerning the status of a watercourse as international has been submitted to the court. If the court finds that the Silala/Siloli is indeed an international watercourse, it will have a unique opportunity to clarify states’ substantive and procedural obligations with respect to its use.     

Water Right Institution and Strategies of the Yellow River Valley

With the rapid economic and social development in China, pressure on water resources in the Yellow River is becoming more and more prominent. For the sustainable social, economic and agricultural development in the Yellow River valley, it is imperative to create the perfect water right institution, which plays a key role in improving the efficiency, equity and sustainability of water use. This article analyzes the problems with the water right institution of the Yellow River valley, which includes unclear definition of water right, ineffective allocation mechanism, low water price, and water pollution. Correspondingly, some measures need taking in order to address these challenges. First of all, the water right, especially tradable water right should be well defined. In the article, water right is defined as a series of water management capabilities and use requirements. Then, water right allocation system should be built up, including examining and approving water usufruct, the paid transfer, and the paid utilization of water right. In the end, based on the well defined tradable water right and the well developed water right allocation system, water right market should be developed, which will promote the transfer to the highest valued water uses. When the water right trade happens, the water right price should be fixed in certain situation. On one hand, the water right price should be raised; on the other hand, the water right price should be determined according to a two-part water price system. Of course, market should not be the only role in the water right institution. The authorities should also be necessarily responsible for water right organizations, which make proper water right law, policy and regulations that assist the smooth going of water right market. There are some other measures for the yellow river, such as a water booklet should be recorded for mastering the detailed situation of water resources in the Valley; the South-to-North Water Diversion Project should be accelerated in order to alleviate the water scarcity. All the above measures will do good to resolve the problems of water resources of the Yellow River valley when they are correctly taken.     

The Participatory Regime of Water Governance in the Iberian Peninsula

Abstract

Transparency and public participation are important ingredients to achieve effective water governance. Since the Rio Conference, diverse international instruments advocate access to information and public participation in river basin management. At the European Union level, the Water Framework Directive (WFD) establishes specific obligations for member states to include the public in the planning and management of river basins processes. In addition, the WFD Guideline on Public Participation includes three forms of public participation: active involvement, consultation, and provision of information. At the present moment, Spain has a legal and institutional framework that allows a very limited participatory process: only water users holding an economic stake can participate in the management of Spanish river basins. Concerning transparency, the law establishes the right to accede to information but this right has two different levels: for the general public and for water users. In the Iberian shared river basins regulated by the 1998 Luso-Spanish Convention, mechanisms allowing public participation in the terms of the WFD are not in place yet. It is necessary to reform the legal and institutional framework to facilitate real participation and to achieve effective water governance.     

Water as a Human Right: The Understanding of Water Rights in Palestine

The international community has affirmed the human right to water in a number of international treaties, declarations and other documents. Most notably, in November 2002 the UN Committee on Economic, Social and Cultural Rights adopted General Comment No. 15 on the right to water, setting out general standards and obligations related to the right to water. This paper analyses if and to what extent the UN concept is acknowledged in Palestine while focusing (a) on water rights allocation between Palestine and its neighbour Israel, taking the commonly shared Mountain Aquifer as an example; and (b) the governmental obligations with regard to the human right to water which broadly are to be categorized in obligations to respect, protect and fulfil this right. The paper analyses whether the institutional setting within the Palestinian water sector is appropriate to meet the challenge of the UN concept. The main obstacles and challenges facing strategic and coordinated governmental action towards the UN concept are discussed. While outlining the most important characteristics of the Palestinian water sector, the criteria of the UN concepts are evaluated. Finally, the paper discusses the precondition for the implementation of the human right to water in Palestine.     

The United Nations Concept of Water as a Human Right: A New Paradigm for Old Problems?

Water history reveals millennia-old struggles over the ownership of water, the pollution and depletion of water sources, and conflicting water uses. What is new is the scale of these problems, particularly access to water for the poorest of the poor. This paper discusses the various conceptual responses to the water problématique, including the commodity, public and social approaches. The human rights aspects of the latter are analysed in some detail in light of the recent General Comment on the Right to Water by a United Nations body. The paper argues that countries have international legal obligations, to respect, protect and fulfil this right without discrimination, that carry clear implications for policy and practice. While the report does not argue that this human right requires the complete decommodification of water or that it provides a ‘magic bullet’ solution, it seeks to show the benefits of a human rights approach and provides some suggestions for implementing the right at the local, national and international levels.     

China’s practice on the non-navigational uses of transboundary waters: transforming diplomacy through rules of international law

China’s abundant transboundary water resources face new challenges as demands increase, internally and externally. As China seeks new ways to cooperate with its riparian neighbours, more attention is being paid to international water law in the evolving diplomatic practice across the region. China’s (mostly) bilateral transboundary water cooperation is here characterized as ‘responsive diplomacy’. This paper explores China’s state practice in this context and concludes by recommending that it moves from ‘responsive’ towards ‘preventive’ diplomacy. The author offers strategic and policy responses in order to effect this change.     

The relevance of international water law to later-developing upstream states

The relevance of the main instruments of international water law to the hydraulic development projects of later-developing upstream states is explored, for a non-legal audience. Relevance is gauged by querying common misperceptions, checking the compatibility of the instruments, and considering their effect along the Nile, Jordan and Tigris Rivers and associated aquifers. Specific principles of international water law are found to support upstream development in theory, though its relevance is threatened by incompatibility of clauses between the instruments, the erosion of norm-building processes, and a shift away from the idea that territorial sovereignty over a fluid resource should be limited.     

The human right to water and foreign investment: friends or foes?

States have a duty to respect, protect and fulfil the human right to water. Water-related foreign investment, governed by international investment agreements (IIAs) that do not yet incorporate human rights provisions, can have both positive and negative impacts on human rights. It is argued here that the right to water could be used as an argument to justify measures taken against water-related investments in disputes between host states and foreign investors. While arbitral tribunals have not yet accepted this argument, it might be accepted in the near future as IIAs incorporate human rights provisions.     

干旱与水资源短缺相关问题探讨

为探讨干旱与水资源短缺之间的相互作用与发展规律,归纳总结干旱与水资源短缺的概念、内涵及评价指标,综述国内外关于两者间相互关系的研究进展,并展望干旱及水资源短缺的未来研究方向,以期为今后的研究提供一定的理论基础和借鉴。     

The legal framework for river use in the United States

Use and development of rivers takes place within a complex legal framework that guides the actions of interested parties holding conflicting values. One of the major components of this legal framework is state water allocation law. This law takes several forms among the states, but its basic function is to establish rules for water use by assigning property rights in water. Another component of the legal framework for river use addresses the public access issue. The primary focus here is establishment of the boundary between the exclusive rights of landowners and the rights of the general public to use the surface and underlying beds of waterways. A third component consists of governmental controls over water use and development. These controls restrict the exercise of private property rights in the resource. From an initial focus of protecting the public right of navigation, this law has expanded to include protection of water quality and a variety of other environmental values. The current legal framework provides a relatively sound basis for balancing competing values and interests, but problems exist. For example, the division of water management responsibilities between the federal and state levels of government sometimes results in conflict, and existing procedures for managing conflict related to proposals for water transfer do not appear to be adequate. Therefore, the current framework will not remain static; it must continue to evolve in order to operate more effectively and to incorporate future increases in knowledge and the associated changes in values and management needs.     

国际河流中下游沿岸国对上游沿岸国的影响

人们普遍认为只有河流上游沿岸国通过水量控制或水质污染给下游沿岸国带来损害,而没有认识到下游沿岸国凭借对水资源已有使用权和水权的要求,将剥夺上游国家未来对水资源的使用权。法院判决、信函交流、学术讨论和国际河流开发利用的实践等表明,人们已认识到剥夺未来使用权的概念并对之理解越来越清晰。讨论了赫尔辛基规则和国际水道条约中上下游沿岸国之间的关系,认为公平合理利用原则已成为水道公约和国际水法的基础性导则,河流各沿岸国应相互尊重,一国的河流开发举措不应对其他国家造成利益损害。结合Baardhere工程、盖巴斯科夫-拉基玛洛工程两个典型的国际水事纠纷事件,分析了剥夺未来使用权的概念和公平合理利用原则在实践中遇到的挑战。     

水事纠纷中水事义务转让的法律分析

水事纠纷不仅有权利纠纷,还有义务纠纷,对水事纠纷的概念不应只从权利的角度来解释。水事义务转让是与水权转让相对应的另一类水事关系转让。对其进行了简单的法律分析,对其法律依据和现行水事义务转让法治化的困难作了简要阐述,最后通过对湖南省道县向阳坝水电站的灌溉义务转让纠纷案例,进行水事义务转让的法律分析。     

关于水权交易的再思考

在水资源不丰富的情况下，水资源浪费与污染造成了我国水资源进一步短缺。目前。在我国界定水权，进行水权交易是符合科学发展观，提高我国水资源使用效率的有效途径之一。虽说我国已经出现了水权交易，但是水权交易要进一步发展就必须具备相应的水权交易市场、水权交易制度、组织机构及交易监管制度。这4项是保证水权交易健康运作的必要条件。     

基于用“动态汛限水位”来利用雨洪资源

雨洪资源的依法利用,早已在国外广泛展开。国内的雨洪资源利用,还面临着重新计算汛限水位高度,然后再依法予以重新确认的难题。唯有如此,才能缓解各级行政部门为了多产粮而＂压＂水库管理部门不顾风险的超汛限蓄水。因此,现阶段用＂动态汛限水位＂来化解矛盾,使水库管理部门从被迫接受潜规则的超汛限蓄水,转变为可以摆上台面的依法科学合理...     

Sharing Rivers for Peace,Development, and Security

Abstract

Water is a finite resource, and with the considerable upsurge in population, urbanization, and industrialization, it is also becoming an increasingly scarce resource. Many countries in the world rely on river waters, and many of those rivers are shared by two or more countries. Dams on those rivers have been a major source of tensions, disputes, and, in some cases, even conflict between riparian countries because dams could result in massive diversion of river flows. Those developments have, inter alia, highlighted the relevance and importance of the principles of international water law, as reflected in the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. The World Commission on Dams has also underscored the importance of, and elaborated on, those principles with regard to dams on shared rivers. This article discusses and analyzes the recommendations of the Commission in this area, and compares them with the principles of international water law as enunciated in the United Nations Convention     

基于文献计量的国际河流水资源研究发展态势

以ISI Web of Science论文数据库为数据源,采用美国汤姆森科技信息集团开发的专业数据分析工具TDA(Thomson Data Analyzer)对1951年至2011年(数据入库时间至2011年)国际河流水资源研究研究论文进行数据挖掘和分析.结果表明:国际河流水资源研究持续增长,特别是近20年增速显著;美国在该领域居于引领优势;国际河流水资源研究主要集中于发达国家所属国际河流的可持续发展和水资源管理、关注河流与环境变化之间的问题、河流的跨界及水资源综合管理等.建议密切关注国际河流水资源的发展态势与进展,鼓励我国环境生态学家、水资源学家、生物学家、地质学家、气象学家加强交流合作开展研究,为我国赢取更广泛参与国际河流事务的发展空间.