A review of the evolution and state of transboundary freshwater treaties

Internationally shared basins supply 60 % of global freshwater supply, are home to about 1/3 of the world’s population, and are focal points for interstate conflict and, as importantly, cooperation. To manage these waters, states have developed a large set of formal treaties, but until now these treaties have been difficult to access and systematically assess. This paper presents and makes publicly available the assembly and organization of the largest known collection of transboundary water agreements in existence. We apply for the first time a “lineage” concept to differentiate between independent agreements and groups of legally related texts, spatially reference the texts to a global basin database, and identify agreement purposes, goals and a variety of content areas. The 688 agreements identified were signed between 1820 and 2007 and constitute 250 independent treaties which apply to 113 basins. While the scope and content varies widely, these treaties nominally govern almost 70 % of the world’s transboundary basin area. In terms of content, treaties have shifted from an earlier focus on regulation and development of water resources to the management of resources and the setting of frameworks for that management. While “traditional” issues such as hydropower, water allocation and irrigation are still important, the environment is now the most commonly mentioned issue in treaty texts. Treaties are also increasingly likely to include data and information sharing provisions, have conflict resolution mechanisms, and include mechanisms for participation beyond traditional nation-state actors. Generalizing, treaties have become more comprehensive over time, both in the issues they address and the tools they use to manage those issues cooperatively.     

Water resources data and information exchange in transboundary water treaties

Despite international calls for data and information sharing in transboundary waters and basin-specific evidence of its importance to cooperative management, no systematic research has been undertaken to answer questions of where, how frequently, and which water resources data and information are exchanged. This paper examines all available transboundary water agreements signed between 1900 and 2007 to determine the degree to which water resources data and information is exchanged in the world??s regions, how the level of exchange has developed over time, and the different ways in which data and information sharing has been codified in practice. In doing so, we reveal important trends regarding the mechanisms, types, and frequencies of water resources data and information sharing??as well as differences across temporal and spatial scales, by treaty type and function, and regime type. The results indicate that data and information exchange as already practiced is more nuanced and, in some senses, widespread than may commonly be recognized. Further, the results reveal key linkages between democracy and data and information exchange and provide a basis to test analogous linkages related to data sharing and other variables in transboundary water settings.     

Process-focused analysis in transboundary water governance research

Previous analysis of transboundary water governance has been focused primarily on state-centred approaches. The articles in this special section move us forward from this focus in three ways. First, they highlight the crucial role played by non-state actors in shaping water governance outcomes. Second, they show us how these actors can increase the ‘room for manoeuvre’ in negotiations. Third, they provide an entry point for developing process-focused approaches in transboundary water governance research. This article argues such an approach might improve our understanding of transboundary water outcomes and suggests new focus on how key actors form networks of alliances and shape decision-making landscapes at multiple governance levels and arenas. From a scholarly perspective, it brings to light the blurred boundary between state and non-state actors, as derived from a better understanding of the elusive links between actors and organisations; it unravels additional layers of complexity in the hydro-hegemony concept and bends the rigid notion of power asymmetry, towards the subtleties of power relations and interplays in transboundary decision-making processes.     

Pursuits of adaptiveness in the shared rivers of Monsoon Asia

How water should be managed in Monsoon Asia is emerging as one of the core earth system governance challenges. In this article, we explore the politics around pursuits of adaptiveness in water management, emphasizing the major transboundary river basins draining the south and eastern Himalayas. We look at two main functions: storing, diverting and sharing water for periods of scarcity; protecting people and places from destructive floods. We find that the pursuit of adaptiveness will take place partly outside the range of human experience in a context of large differences in exposure and vulnerabilities, disparate interests and unequal power. Anticipatory policies and actions to adapt and improve adaptive capacity to the transboundary impacts of changes in water-use, land-use and climate on water resources and services are still in their infancy; but several problem-framing discourses are emerging that have longer-term implications for water governance. It is not yet clear how these competing policy-frames will evolve in Asia. Much will depend on how systems of water governance develop. Public scrutiny of how governments in Asia plan to adapt to climate change in the water sector—on how risks of not enough and too much water are dealt with—will need to continue to help sort out those projects and strategies which are driven primarily by political benefits from those which actually contribute to building adaptive capacities and maintaining social-ecological resilience.     

Tributary-level transboundary water law in the Syr Darya: overlooked stories of practical water cooperation

Conventional emphasis on basin-wide water management has often resulted in the formation of transboundary water law on the basin or near basin scale. In Central Asia, however, the Syr Darya Basin possesses an abundance of tributary-level cooperative agreements that guide and codify water sharing and management on the sub-basin scale. To understand the volume and nature of this cooperation, this paper compiled and analyzed a set of agreements that apply to small transboundary tributaries (STTs) in the Syr Darya Basin. The paper assembled the largest collection of STT water agreements—123 in total—and classified such documents according to a range of criteria including: purpose and objectives, water management issues, and operational mechanisms. Results of this work highlight a rise in sub-basin-scale cooperation in the first decade of the twenty-first century, a time when large-scale cooperation appeared tenuous; a practical orientation to transboundary water management at a small scale; and an abundance of treaties of short time duration. These findings present options related to scale, time duration and focus of transboundary water law that can help inform future treaty development.     

The weakness of the strong: re-examining power in transboundary water dynamics

This article proposes a re-examination of how power is conceptualized within transboundary hydropolitics by arguing that power has been misrepresented in the water resources literature. Overemphasis on the factors of a country’s relative power, riparian position, and technological potential to exploit the resource has led to assumptions that the non-hegemon(s) is often unable to achieve their own positive outcomes and that the outcomes of interactions between hegemons and non-hegemons are predictable and detrimental. However, it appears that there are many examples that run counter to the power narrative that employs these factors. This study argues that this overemphasis neglects hegemonic vulnerabilities, which, when included with hegemonic capacities, are much more instructive in explaining transboundary water dynamics. The sources of the weakness of the strong of the alleged hegemon originates from several sources, including interlinkages between water and non-water issues, internal and external expectations, and consideration of whether the water-related issue at hand is crucial to each party’s survival or whether the party has the luxury to survive the outcome of the resolution. These factors allow for non-hegemons to achieve more favorable outcomes and, when incorporated in analysis, provide a fuller picture of the true power balance in each transboundary water interaction. We therefore call for a reconceptualization of power dynamics in transboundary waters that accounts for structural weaknesses present within all parties.     

Transboundary water interaction II: the influence of ‘soft’ power

This paper seeks to broaden the analysis of transboundary water interaction, by examining and interpreting the influence of ‘soft’ power therein. The ‘soft’ power of persuasion is understood to be exercised through discursive and to a lesser extent ideational means, and is interpreted in terms of compliance related to distributive (conflictual) or integrative (consensual) ends (after Scott (1994)). The focus is on inter-state water conflicts in hegemonic political contexts, where, it is found, the ‘first among equals’ has a greater ability to exploit ‘soft’ power and to determine the outcome. ‘Soft’ power is also seen to influence the choices states make or avoid in their transboundary water interaction, which explains in part how treaties intending to manage conflict may in fact delay or perpetuate it. For example, ‘soft’ power can be used by the basin hegemon to frame inequitable forms of cooperation in a cooperative light, such that unfair and ultimately unsustainable transboundary arrangements are replicated by the international donor community. Non-hegemonic riparian states also employ their capacity of ‘soft’ power, though may find themselves with little choice other than to comply with the arrangement established by the basin hegemon. The findings stress the importance of analysts questioning claims of interaction promoted as ‘cooperative’, and of examining the ‘soft’ power plays that underlie all transboundary water arrangements. Exemplification is provided through transboundary river basins and aquifers around the globe.     

Enhancing climate resilience of transboundary water allocation agreements: the impact of shortening the agreement’s lifetime on cooperation stability

Efficient use of transboundary rivers under climate change requires periodic adaptation of their governing regime to the hydrological realities of the basin. Applying a short-term time horizon to an agreement on water allocation can make it easier for the riparian states to update the terms of their cooperation periodically, and thus, adapt them to changes in water availability resulting from climate change. However, agreements with a pre-agreed termination date can only increase the efficiency of water use if they lead to a stable cooperation. In this paper, I analyze how riparian states’ previous knowledge of the termination date of a water allocation agreement affects the agreement’s stability. The results show that when riparian states are aware of the agreement’s termination date, there is a higher chance for them to free-ride. However, certain cases may occur in which previous knowledge of the agreement’s termination date can contribute to the stability of an agreement by enforcing compliance.     

国际法上的风险预防原则

风险预防原则已经成为国际和国内环境保护法律制度的一项重要的基本原则。该原则要求我们在进行任何的经济活动之前就对该活动可能会对自然环境和生态系统造成的影响进行风险预测,并相应采取针对性的措施,从而更好地保护自然环境和生态系统。但如何将该原则运用到危险废物越境转移领域,仍然有待我们进行理论上的探讨。应加强对危险废物越境转移中运用该原则等方面的探讨。     

Informed consent utilizing satellite imagery in forestry carbon trading with North Korea

Informed consent can assist in mitigating investment risks associated with forestry carbon trading in North Korea by supporting corporate responsibility. Scientific developments for collecting information necessary to informed consent far outpace the development of inter-Korean regulatory frameworks. This paper seeks to identify how the intersection of legal and technological disciplines can foster informed consent, through the responsible application of satellite data. The permanent record of standard satellite remote-sensing systems demonstrates its capability of presenting area-wide visual evidence of forest conditions. Such data are essential to initiating informed consent, establishing a carbon stock baseline, detecting and quantifying rates of land-cover change, and quantifying above-ground biomass stocks as specified in the Kyoto Protocol. This research could be a valuable reference for utilizing the capabilities of satellites with informed consent obligations in North Korea by suggesting the provision of realistic informed consent mechanisms.     

The law and practice of international organizations’ interactions with personal data protection domestic regulation: At the crossroads between the international and domestic legal orders

The development and overlap of legal frameworks on personal data protection, on the one hand, by states and regional frameworks like the EU General Data Protection Regulation, and on the other hand, by International Organizations, raises fundamental questions about their coexistence and interaction, including questions concerning the interaction between the domestic and the international legal orders.This article considers how these different legal frameworks come into interaction and tension with each other, as well as how these tensions are addressed in the law and practice of International Organizations and in domestic laws.It reveals the pragmatism of a resulting approach which seeks to ensure effective protection of the fundamental right to personal data protection while respecting the need for IOs to be able to perform their mandate under international law in full independence.     

追溯与寻明:国际法视角下的碳排放权单位研究

自以《京都议定书》为基础的市场化机制建立以来,经过近20年的发展,全球碳金融市场呈现蓬勃发展的态势,交易量大幅提升,成交金额不断攀升,市场化机制在夯实中不断完善和发展。同时,争端与纠纷日益增加,国际多边环境公约调整下的碳排放权机制部分地在WTO体制下进行规制,成为众多学者的憧憬。碳排放权单位体现的既不是GATT框架下的"产品",也不是GATS框架下的"服务",而是在经济上反映出特殊的金融衍生产品的属性。然而,碳排放权单位交易商提供服务的行为契合GATS金融服务要求,因此交易商可依据GATS享受跨国服务领域中的最惠国待遇,并可将与WTO规则相关的争端诉诸WTO争端解决机制,实现环境争端解决的规范化、法制化。     

Environmental regime effectiveness and the North American Great Lakes Water Quality Agreement

Scholars and practitioners around the globe are grappling with how to improve the effectiveness of complex, transboundary, and multilevel environmental regimes. International environmental agreements (IEAs) have been around for decades yet achievements and outcomes have not met expectations. While international relations scholars have primarily focused on the effectiveness of agreements between states, public policy scholars have been interested in outcomes at a variety of scales including international, national, sub-national, and local across various environmental policy domains and at the instrument and program levels. This article presents findings from a case study of environmental regime effectiveness that uses a modified version of the Oslo-Postdam solution to assess the effectiveness of the Great Lakes Water Quality Agreement, a long-standing, bilateral international environmental agreement between Canada and the USA. The findings indicate that there is a need to more broadly define international environmental agreements in complex transboundary systems to include both formal and informal regime features and multilevel governance efforts and to focus on specific policy goals and ecological outcomes associated with IEAs. This case also illustrates the potential to modify the Oslo-Postdam approach by combining expert assessment and data collection methods with traditional policy analysis and program evaluation methods in assessments of environmental regime effectiveness.     

Transboundary water interaction I: reconsidering conflict and cooperation

Whether the inter-state and sub-national tensions over transboundary waters will lead to greater conflict or increased cooperation remains a hotly debated issue. Most work on the subject situates transboundary water conflict and transboundary water cooperation at opposing ends of a continuum. The examination of either conflict or cooperation, we argue, refutes the reality of the vast majority of contexts where cooperation and conflict actually co-exist, and perpetuates the paradigm that any conflict is ‘bad’, and that all forms of cooperation are ‘good’. The efforts of the international water academic and practitioner communities may be better served through a combined reading of conflict and cooperation as transboundary water interaction. Mirumachi’s Transboundary Waters Interaction NexuS is offered as a robust method demonstrating that simultaneous consideration of conflict and cooperation is both insightful and possible. Transboundary water interaction is shown to be an inherently political process determined by the broader political context. We examine evidence suggesting that uncritical acceptance of traditional forms of ‘cooperative’ arrangements may in fact sustain the conflict it was intended to transform. Several other less well-known faces of ‘cooperation’ are discussed in detail, with examples of narrow, token and coercive cooperation derived from inter-state relations on the Jordan, Nile and Ganges rivers. With a view to paving the way for improved transboundary water sharing and governance, subjectively negative, neutral and positive forms of interaction are defined, and linked with a first approximation of their potential driving forces.

Mobile payments: Current and emerging regulatory and contracting issues

Sitting at the heart of m-commerce and at the intersection of the value chains of the payments, mobile, retail and technology industries, mobile payments are set to grow rapidly in the short and medium terms. M-payments are giving rise to the development of a new ecosystem of market participants including card schemes, MNOs, retailers, device suppliers, service providers and trusted service managers. Key regulatory considerations arising include e- money and payment services, mobile services regulation, consumer protection, data privacy and standards. The contractual landscape linking the various parties inhabiting the ecosystem is also rapidly developing, with key issues around revenue models, customer ownership, technology development, and risk and liability. Parties involved in mobile payments will need to carefully assess their and others' roles and regulatory aspects in determining their strategy and how to approach contractual discussions.     

位于他国内水外国船舶上犯罪之管辖权

针对位于他国内水的外国船舶上的犯罪之管辖权问题,指出船旗国不能根据领土原则行使管辖权。沿海国对在本国内水的外国船舶上的犯罪拥有排他性的领土管辖权。一般而言,沿海国对于下列犯罪行使管辖权：一是沿海国国民犯罪或使该沿海国国民受到损害的犯罪;二是破坏沿海国安宁和安全的犯罪;三是违反沿海国有关检疫、入出境、海上安全、海关事务、水域污染或禁止贩毒的法律的行为或犯罪;四是其他性质严重犯罪。根据国际习惯法规则或双边领事条约的规定,对于轻微的不影响船舶以外秩序的犯罪,沿海国一般不行使管辖权,由船旗国管辖。     

Indicators as a Technology of Global Governance

The use of indicators is a prominent feature of contemporary global governance. Indicators are used to compare and rank states for purposes as varied as deciding how to allocate foreign aid or investment and determining whether states have complied with their treaty obligations. This article defines the concept of an indicator, analyzes distinctive features of indicators as technologies of governance, and identifies various ways in which the use of indicators has the potential to alter the topology and dynamics of global governance. Particular attention is paid to how indicators can affect processes of standard setting, decisionmaking, and contestation in global governance. The World Bank Doing Business indicators and the United Nations Human Development Index are analyzed as case studies.     

Canada–USA Bilateral Fisheries Management in the Gulf of Maine: Under the Radar Screen

Canada and the USA have developed a series of cooperative initiatives that address transboundary fisheries issues in the Gulf of Maine. The Canada–USA Steering Committee serves as an umbrella forum for discussing and coordinating transboundary management measures. Through the work of the Transboundary Resource Assessment Committee and the Transboundary Management Guidance Committee, the Steering Committee has overseen the development of joint scientific stock assessments and a sharing agreement for groundfish resources in the vicinity of the eastern Georges Bank. The bilateral Fisheries Enforcement Agreement helps ensure the success of such cooperative management initiatives by combating illegal fishing in the vicinity of the international boundary. However, the largely informal 'under the radar screen' arrangements, while positive on many fronts, to date fall short of fully implementing key principles of sustainable development, such as public participation, the ecosystem approach, integration and precaution.     

Addressing cross-border environmental displacement: when can international treaties help?

Environmental degradation is increasingly causing cross-border displacement of people, but countries have formed no treaties to facilitate collaboration on the issue. When is such collaboration feasible, and how should environmental displacement treaties be designed? We present a game-theoretic analysis. In our model, countries first decide on ratifying a treaty, and doing so commits them to helping other countries that face cases of environmental degradation in the future. The equilibrium analysis suggests that treaty formation is easier under conditions of mutual vulnerability than if some countries are at a greater risk of environmental degradation than others. Our most important finding is that contrary to the received wisdom, treaties imposing stringent demands on countries are easier to form than treaties that are easy to comply with. We also examine the benefits of using displacement treaties to build capacity for cooperation. We illustrate the utility of the analysis with a discussion of the Kampala Convention on environmental displacement and consider the potential for future treaty formation in Sub-Saharan Africa and Oceania.