The 22nd of March marks World Water Day, and this year the focus will be on accelerating change to solve the water and sanitation crisis. On the same day, in New York, the United Nations will kick off the work of the UN Water Conference 2023, the first in nearly 50 years, a summit that is expected to lead to a global water agenda. However, while there is already talk of a "Paris moment" for water resources-with expectations of an outcome comparable in climate action to the Paris Agreement-there is another issue that is also a focus of the conference: water cooperation.
As the world faces an impending water crisis, with demand for freshwater expected to exceed supply by 40 percent by the end of this decade, transboundary management of the blue gold can no longer be postponed. Indeed, transboundary waters account for 60 percent of the world's freshwater flows, and collaborating, after all, means giving each other common rules. So, to understand what role law plays in this challenge, Renewable Matter interviewed Gabriel Eckstein, a geologist and lawyer, professor at Texas A&M University School of Law, former president of the International Water Resources Association (IWRA) as well as an advisor to numerous national and intergovernmental organizations, including the US Agency for International Development, the World Bank, the United Nations International Law Commission, FAO and UNESCO.

What are the reasons behind the upcoming UN 2023 Water Conference?

There are a lot of reasons why the United Nations is holding this conference. We have not had a water focused conference at that high level since 1977 in Mar del Plata. Meanwhile, there have been conferences on biodiversity, on environmental issues, sustainable environment, food and agriculture. But not on water. And many of us think it is very long overdue. We cannot do anything without water, whether it is sustaining the environment, farming, industry, or granting hygiene and sustenance to people. The UN is now recognizing that water is at the center of all these societal activities that we engage in.

Is there a growing consensus toward a global water agenda, or not?

I think there is some growing consensus towards a global water agenda, however I am a little hesitant that it is comprehensive enough. We still take water for granted and we do not value it at the level it needs to be valued globally. And I do not mean only in economic terms, in terms of what you pay as a consumer, but also in non-economic terms. I do not think we recognize the critical importance of water. It has no substitute. We cannot live without it. The level of priority that we give water in both our national and international agendas is not anywhere near what it should be.

The conference will be co-hosted by the government of the Netherlands and Tajikistan. Tajikistan, in particular, has an open transboundary waters dispute with Uzbekistan and Kyrgyzstan. What is the role of water cooperation in the third millennium?

Water cooperation is not a tool, it is a concept. We aspire to cooperate over these important resources, especially when they are transboundary and shared between countries. But it is not enough to have this aspiration. We need to create stronger mechanisms that support and lead to water cooperation. For example, the international law for transboundary groundwater resources is evolving but is still not recognized. Yet, it could give diplomacy a framework and a structure for how to cooperate.

Is it evolving only because it is mainly customary?

Yes, there are customary aspects. But there are also some written rules in the UN Watercourses Convention, which has 37 signatories. Even the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes has a few more, maybe close to 50. Although, if you consider that there are almost 200 countries in the world, that means most of them have not signed these agreements. Of course, we have customary law, but it is more vague. We still do not have a firm set of international water laws that most countries believe to be as fully enforceable.
In addition, we have not put enough emphasis on institutional mechanisms for promoting cooperation. In Europe for example you have a great commission on the Danube River and on the Rhine River. We have similar ones in the Great Lakes area, between US and Canada, between U.S. and Mexico, along the Zambezi in Africa, and in other regions. But there are 310 international watercourses in the world. The majority of them do not have any kind of institutional mechanism. We have somewhere around 486 transboundary aquifers that have been identified so far. However, only seven of them have a treaty, and not all seven of them have an institutional mechanism to help promote cooperation. That is something we need to push and further encourage internationally.

Will the UN Water Conference be helpful in establishing a global framework, something that can promote multilateral agreements?

The purpose of this U.N. conference is, in part, to encourage cooperation, at least encourage relationships between neighboring countries, create institutions, and maybe even establish regional law, not just international customary law. But it's truly hard to do this in a two-day conference. This is a very short timeframe. The conference should have been one or two weeks long. It could have been much more involved and much more intensive in order to reach the goal of water cooperation at the truly global level.

You recently served as a counselor for the government of Bolivia in the Silala case in front of the International Court of Justice (ICJ), a dispute that had some interesting outcomes… what happened?

The dispute was over a transboundary water body, the Silala, a river that originates from groundwater as springs on the Bolivian side of the border, and then flows both on the surface and also under the ground towards Chile and the Pacific Ocean. The question was: who has rights to it, and how much water can each country take?

This is a good example of how we have not yet reached the level of cooperation I mentioned earlier, because this is a case that one would hope could have been resolved through cooperation. In fact, the countries tried for many years to sit down and come up with some cooperative mechanism or agreement. Unfortunately, they never achieved it. That is why they went to the ICJ, even though cooperation would have been less expensive and have fewer externalities and side effects.
The outcome of this case was very interesting because the Court said basically that on almost every point of dispute, over the five years that the parties were engaged in it, they actually converged, in particular on their opinions of what the science was for the flow regime and legal rights regime. The Court declared that it did not have to rule on nearly all of the issues because the Parties had effectively already agreed on those points.

Now, they must agree that they agreed?

Basically, but is that a good Court decision? Well, maybe it is because the parties did seem to come to an agreement on most of the issues. Hopefully, the decision lays the foundation for improved cooperation between Bolivia and Chile.

As a geologist, lawyer and academic, what about granting legal rights to rivers?

Granting legal rights to nature is a very interesting phenomenon that started decades ago, in the 1970s. But for rivers, the idea that you could give a non-human thing human legal rights really caught on about a decade ago. It happened in New Zealand, Australia, India, and Ecuador, and more recently in Canada and a few other places.
From a legal point of view, the idea is odd because you have to ask: how can you give a thing a right? Rights are normally something enjoyed only by people. Also, what does it mean for a river to enjoy a right? In addition, when you enjoy a right, that means you are protecting those rights against somebody else. But if you take the logic further, that means you have the possibility of injuring the rights of somebody else in the effort to protect yourself. Does that mean that rivers that were recognized to have legal rights can be sued because of flooding or other damage that they could cause?

As you said, the cases are growing. Are we moving in this direction?

The reason why this has moved in this direction, at least from my understanding, is because many people have gotten frustrated with our environmental laws. Environmental laws are usually anthropocentric. We usually protect the environment for the benefit of people. But something is changing. We have extinctions, we have a loss of biodiversity, we have a loss of forests, and we fail to see the human value in it. So, advocates for this approach believe that only by giving rivers rights will we be able to prevent such tragedies.
As a result, there is a movement to give rivers rights similar to the ones we give to human beings. And I say equivalent, not necessarily equal. However,, the idea is that if we cannot protect the rivers through our regular environmental system, maybe we should expand that system in a way that gives them (the rivers) rights in an (almost) equal way.

Are most of these cases involving rivers historically related to indigenous communities?

When we look at the law, we typically look at it from a very Western perspective. And we have a very hard time comprehending what an “Indigenous” viewpoint means; an Indigenous viewpoint is not enough because what is meant by Indigenous in New Zealand and what values it includes is very different than what it is in Canada or Lesotho.
We, Westerners, did not grow up as part of their communities. Thus, we have not experienced “law” from their perspective. So, the idea that a river could be a living entity for us might be strange. But from their legal and cultural perspective, it is just normal. I do not want to discount the idea of the possibility of recognizing legal personality in rivers or forests or anything else. I just find it very difficult to fully understand from my Western-educated point of view.
Nevertheless, I want to try to be understanding and create space for such perspectives. Maybe it will work in some national laws. Take New Zealand, for example. If it worked for them, who am I to say that it is wrong? Law has to emerge from the community that is developing the law for itself. If they want to be bound by that kind of legal regime, and so long as it is not contrary to basic human rights, there is no basis for me to say that it is wrong. It is just new, unique, and maybe even strange. But it is not wrong.

Speaking of water scarcity, the US had two recent events strictly related to water quantity and quality: California has spent the last two decades in what scientists define as the most extreme megadrought in the last 1,200 years; and Ohio suffered the consequences of the derailment of a Norfolk Southern train carrying toxic chemicals, an event that provides insight into what could be the impacts of massive water pollution.
What is the role of law in addressing these kinds of issues? Do we need more governance or implementation, for example, of the principle of prevention or of not causing significant harm?

I wish we had those principles of prevention and precautionary approach here in the US.
We do have those in some aspects of the law, but not really in our environmental laws, in our water law, our property regime, which are mostly based on economics. Even our private property regime is based largely on economics. Obligations of prevention and the precautionary approach, are things that do not fit well in our capitalistic economic system, which is much more near-sighted than far-sighted. As a result, it is more difficult for us to respond to problems like climate risk.
Coming to the derailment in Ohio and groundwater depletion in California, sure we have our water rights, water allocations, and the Clean Water Act. But these legal regimes are much more reactionary rather than preventive. Legislators are trying to come up with mechanisms to respond so that the system can be more preventive but also more responsive, as the system right now is quite slow to react. Some states have tried to bring in market forces like was done in Australia in terms of creating a market system for water rights. Is that the appropriate mechanism or approach for the US? I am not sure yet. I think it is something we need to continue testing and exploring.

You mentioned water marketing. On December 7, 2020, through the Nasdaq Veles California Water Index (NQH2O), water became a commodity exchanged on the US stock market.
Whatever you say, water is unique, there is no substitute and it is actually critical for life, like air. Market forces have been applied to our property regimes, work on forests, oil and gas development, and various natural resources. But, it has not worked so well with water. Myself, I am somewhere in between. I do not like complete privatization and an unfettered free market. However, I do not agree that water should be exclusively in the public domain. I think there has to be some kind of middle regime where both the private sector and the public sector together collaborate on its management and protection. I do not think we have done it very well in the US.

When has the US not managed its water very well, for example?

We were not prepared for the massive drought that we now have in the American West, or the recent massive snowfalls and atmospheric rivers that hit those same areas. Both our legal regime and infrastructure were not prepared for this. For example, we need to have water reserves that do not suffer from excessive evaporation. Having a reservoir in the desert just doesn’t make sense. But, what about storing water underground in aquifers? We need to be a lot more thoughtful and creative in terms of how we manage our water resources. I should say that I am also a big proponent of nature-based solutions. For example, we are ignoring the value of aquifers as filters. We are ignoring the values of wetlands and mangrove swamps. And, we ignore the way natural ecosystems work to produce more water, to create clean water, to treat water, and to store water. We always seem to try to engineer our way out of droughts and floods. And I do not think that is right. We should work with nature.

What is the role of the private sector on water?
I think that there has to be a combination of the private sector and the public sector working together, in a regulated market, to address water issues. It has to be a market that addresses people's domestic needs, which is really a small percentage of total water use as compared to water use by agriculture and industry. Domestic water use can easily be subsidized by the other sectors, as well as by leisure water users, because that is such a small proportion. Such a system should allow companies to make a profit from the provision, treatment, and purification of water, whether for people, agriculture or industrial activities. But for people, it has to be at a reasonable rate. It cannot be a totally free market, but it cannot be a free public service. As a result, the private sector has an important role to play because the government cannot be totally responsible for water. In fact, we have seen too many examples where the government water monopolies are inefficient and wasteful. Accordingly, it has to be collaboration. When you use the word “stakeholders” in the context of water, that means everybody in the public sector and the private sector.