Hollo, E.J. 2017. Water resource management and the law. Edward Elgar. ISBN: 978 1 78536 982 7, 432 p., £120.

(URL: www.e-elgar.com/shop/gbp/water-resource-management-and-the-law-9781785369827.html )

Miguel R. Solanes

Independant consultant mrsolanes@yahoo.es

To cite this Review: Solanes, M.R. 2020. Review of "Water resource management and the law". Edward Elgar, 2017, edited by E.J. Hollo, Water Alternatives, http://www.water-alternatives.org/index.php/boh/item/123-hollo

This book is a welcome addition to the literature on water law.  It has a functional approach, focused on the relevance of water law for the actual management of water and its services, which goes well beyond the descriptive approach often found in legal publications.

The functional orientation of the publication covers the environmental, economic, and social issues affecting the sustainability and use of water and its services, illustrated by cases from the Americas, Asia, Africa, and Europe.  It includes national, international, and supranational cases and legislation. The discussion covers the role of public and private law in water allocation and trans-boundary water management; including under environmental stress. There is a logical progression from legal systems and their institutions to the adjustment needed in a context of climate change.

The book is a legal publication that recognises the importance of appropriate management and therefore represents a step ahead of exegetic analysis. However future publications linking water legislation and sustainable development need to increase their usefulness and functional value by considering in more detail the impacts that administrative systems and economic contexts have on the water resource and water services. In this respect, good legislation without appropriate administration, although not useless, is seriously hampered. A detailed consideration of the impact of international investment treaties on human rights and the environment would have also been useful, since these treaties have implications on the regulatory capabilities of host countries.

Contents

Some of the more relevant subjects included in the book are:

1. An interesting discussion of the origin of water law, both in Western and Asian countries, found in chapter 1 by Fisher Douglas.
2. The importance of geographical (i.e. climatic), cultural, and socioeconomic contexts, a fact well illustrated by papers on Australia, and its process of legal adaptation (arid), and Finland (abundant supply), and the legal and institutional differences between the two countries as highlighted in chapter 1 and further in chapter 3 by Vihervuhory.
3. The impact of supranational law in the homogenization of national legislations as highlighted in the introduction by Hollo and Chapter 12 by Reese.
4. The relevance of legal security for water development in chapter 1.
5. The need to balance private and public rights, since owners and possessors have to tolerate reasonable uses by the public in chapter 1.
6. The commonality of interest that co-riparian states have in their trans-boundary waters in chapter 1, chapter 6 (by Dai et al) and chapter 9 (by Kuokkanen)
7. The principles of equitable and reasonable utilization of trans-boundary waters, to be applied in a context of optimal and sustainable utilization, taking into account that general international environmental agreements and principles would also apply, in chapters 1, 6 and 9 again.
8. The responsibility of national managers to ensure sustainable utilization, in contexts often determined by tensions between profit, environment and local needs, uses, practices and customs.  The publication points out a lack of balance between financing and local interests and capabilities.  Moreover, the liabilities and duties of investors are often vague, while their rights are clearly spelled out. Often, local legal shortcomings are aggravated by corruption.  Hollo in the introduction proposes that national rules on liability for corruption be applied, as standing in the home country of international project managers.
9. Several chapters (chapter 2, 4, 7, 9 and 14) emphasize the importance that Courts have in strengthening sustainable water management and human rights of access.   These papers cover national and international cases.
10. References to constitutional principles on water in a number of African constitutions indicate the essentiality of water, both as a human right, and as an environmental resource that should be protected.  In the same vein, several papers call for sustainable, balanced and equitable allocation of water use rights. Other contributions explore alternatives to adjust existing water rights (essential to agricultural production in dry countries, such as Chile, Australia, Spain, Western USA, Western Argentina, and the like) at times of environmental change and expanding drought (chapter 2 and 7).
11. Water as human right is also discussed for Argentina, again emphasizing the relevance of constitutional provisions and the important role of judges, in ensuring that the right is satisfied (chapter 4).
12. Cases from Africa in chapters 5 and 15 provide relevant examples of conflict for water during colonization  (Kenya, Njoro Kubwa Springs), the way in which the colonialists grabbed customary common resources, and also of conflicts between water and other resources at present times (Shale Oil and Water in South Africa).
13. Australian and Canadian examples, where secure individual rights are needed to encourage investment and conservation, illustrate the evolution of water rights in a context of climate change and drought. The greater the water scarcity, the more relevant the protection of property aspects of individual rights.  However, this very same scarcity, justifies processes of legislative adaptation for the protection of environmental values.  While property aspects are maintained they are softened up, and regulated, on behalf of common public interests. Exclusivity and security are thus adjusted on behalf of changing contexts and public needs.  Thus, rights evolve from a secure volumetric assignation to a share of the consumptive pool of available water at the source. For example, in New South Wales, what is available is determined by environmental rules and the water plan, as stipulated in the Water Management Act 2000.  The authors of chapter 7 highlight that there is no compensation when adaptation is required due to climate change, drought or bushfires, causing natural reductions in inflows to the water source (New South Wales).
14. The Canadian provinces of British Columbia and Alberta have followed a similar process based on principles for land regulation for which no compensations are paid, except when such regulation excludes all economic viability.  This shows water management plans can change the manner of exercise of water rights (chapter 7).
15. The book also discusses the issue of cost recovery and its shortcomings since it is generally limited to financial costs, while environmental and resource costs are ignored more often than not.  A comparative analysis indicates that cost recovery is not a principle of international law. National laws normally relate it to the provision of services, while the EU Water Framework Directive requires the application of full cost recovery principles (chapter 8). In actual life, the implementation of the EUWFD is constrained by the contexts, policies, and politics, of member countries.

Comments and Highlights

1. The Australian case, described in several contributions, is particularly useful to illustrate the evolution of legal systems according to climatic and economic contexts, and adaptive needs, including changes in riparian law, strengthening of public domain, adoption of planning, and intervention of central governments, while acknowledging the importance of private water rights, so as to promote the integration of water into socioeconomic development. However, the discussion of the Australian cases would have been even more useful had a discussion been added on water markets and environmental subsidies, and their performance and outcomes.
2. The Kenyan and South African cases bring about valuable lessons:  a) the ethical imperative to protect customary rights when colonialism evolves into protection of foreign investments, and b) the need for capable and empowered water administrations that are primus inter paris on water issues, in their relations with other government bodies.
3. On the same line, as shown in chapter 8, it is clear that the control of the environmental qualities of water requires strong regulatory systems complemented by economic instruments.
4. The Columbia River Treaty Between Canada and the United States discussed in chapter 10, illustrates two important issues: a) treaties may need to be amended according to changes in circumstances and context, b) water course treaties do not necessarily need to deal with water allocations per se.  In some cases, it may be more efficient, and beneficial to the parties, to optimize the economic output of water and share economic and financial benefits, rather than water volumes.
5. Water and capital are complementary.   In relative quantities, compared to other uses, not much water is necessary for water and sanitation, but without capital, (or corvee labour) facilities are impossible to build. In this respect, Judges ruling for human rights to water may do well to request information on actual public policies, which can often be drawn from public budgets, rather than from policy speeches. Focusing just on water, while obvious, may not be functional.   Often, the limitations of water services do not come from water itself, but from financial limitations and lack of priority in public budgets.
6. Interstate water litigation in the United States is a welcome subject brought forward by the book in chapter 11.  The balanced checklist of the American Supreme Court, and its consideration of geographical, climatic, legal, economic, and social factors, in adjudicating disputes recognises that water is crucial to economic livelihood, and also to environmental protection.
7. The scope of the publication could have also considered that in other countries recent rulings and legislation prioritize environmental interests, over mere water uses (Argentina, Atuel, 2017). In some cases and legislation, rivers such as the Ganges, the Atrato, and the Whangnui are considered legal persons. How effective is this novel device, through which rivers are considered not just divine (Ganges) but also akin to persons, is an open question, deserving much factual examination. In fact the Supreme Court of India overruled the decision of the state court granting legal personality to the Ganges, stating that the River has no legal personality, and is not a living person.  It is important to note that while some court cases refer to mere uses (when dealing with water development), legislation in the case of the Whangnui Settlement, expressly states that existing property rights are not affected.
8. Several chapters highlight the importance of courts in water management processes, water allocation, human rights to water and protection of water quality.  The role of judges is thus crucial but with a caveat.  In the view of this reviewer adjudications without scientific backing, and balanced analysis of competing interests, existing contexts, and available financial resources, may risk becoming irrelevant. In fact, the move towards administrative water management and conflict adjudication by administrative public entities in the Western United States was prompted by the limitations of the Courts.
9. The quality and effectiveness of water management depends on the capabilities of managing institutions. It is important to prevent conflicts of interests in institutional design.  Such conflicts are present when the same institution is entrusted with contradictory objectives, such as water planning, allocation, evaluation and construction of projects, on the one hand, and promotion of sectoral activities on the other.
10. It would have been useful if the publication had considered the impact of international treaties for the protection of investments on human rights, water management, provision of public services and environmental conservation.