Legal and institutional adaptation to climate uncertainty: a study of international rivers

Abstract

This study seeks to understand why nations find it difficult to include climate-uncertainty mechanisms in treaties regulating international rivers. It also aims to examine the implications of not adopting these mechanisms, particularly during a crisis. The study focuses on the negotiation process of three water treaties, and seeks to identify the underlying reasons behind the inclusion - or exclusion - of such mechanisms. Second, it reviews how the treaties performed and evolved during drought. The first case study is the current drought along the lower Rio Grande and the 1944 water treaty between Mexico and the USA; the second is the 1961-1964 drought along the Great Lakes and the 1909 water treaty between Canada and the USA and, finally, it examines the 1997-2000 water shortage in the Jordan Basin and the 1994 treaty between Israel and Jordan. It was found that issues of sovereignty, water stress, power asymmetry, optimistic water scenarios and the nature of the treaties as “package deals” impede riparians from adopting some of these mechanisms. Among them is a joint institution with wide scope and geographical jurisdiction, an escape clause, allocating water according to percentage of flow, balance mechanism and a binding arbitration procedure. By excluding these mechanisms the anticipated political cost of an agreement decreases. However, this exclusion process limits the ability of these treaties and their institutions to manage a crisis situation, which may in turn engender controversy between the riparians as to how to divide the water in such a situation. Yet, it was found that during crises, treaties tend to evolve as the different parties supplement them with new legal and institutional measures that provide only partial immediate remedy to the crisis at hand. This stresses the need to incorporate mechanisms that are simultaneously politically feasible and hydrologically effective.

Towards Adaptive Management: Examining the Strategies of Policy Entrepreneurs in Dutch Water Management

“…At the same time, it may be a mechanism to realign or break existing coalitions (Fischhendler and Zilberman 2005). Yet, because participants are more likely to defend their own interests, this strategy does not always pay off and may cause delays, stagnation, or even conflicts (Fischhendler 2004, Koppenjan and Klijn 2004, Meijerink 2008). …”

Hydrologic Interdependencies and Human Cooperation: The Process of Adapting to Droughts

“…Human capacity to adapt to environmental stress has long been of scholarly interest but is receiving increased attention as part of science and policy focused on issues of global climate change and sustainability (Bernhardt et al 2006;Burton et al 2002;Clark and Dickson 2003;Janssen et al 2006;Ostrom 2008). Predictions from climate change research suggest the need to better understand the types of adaptations required to deal with higher climatic and hydrologic variability (Epstein and McCarthy 2004;Fischhendler 2004). Successful human adaptations require, in part, understanding societal complexity, managing contexts instead of outputs, and fostering institutions of problem solving that are themselves sustainable (Allen et al 2003;Tainter 1988).…”

Adaptation to climate change in international river basins in Africa: a review / Adaptation au changement climatique dans les bassins fluviaux internationaux en Afrique: une revue

“…Different institutional arrangements accompany these treaties. Some provide flexibility mechanisms or transboundary institutions that could assist adaptation, whilst others have conditions that may limit adaptation (Fischhendler, 2004;Drieschova et al, 2008;Kistin & Ashton, 2008). Some river basin institutions, for example the Lake Chad Basin Commission and the Orange-Senqu River Basin Commission, have expanded their remit to include transboundary groundwater resources as well as surface water (Scheumann & Alker, 2009).…”

“…Kistin & Phillips (2007) find that many of the existing arrangements for cooperation in international agreements are flawed because of factors relating to inclusivity, data quality and transparency, flexibility, equitability, environmental sustainability, implementation and enforcement. An example of limitations to cooperation related to flexibility is provided by Fischhendler (2004), who finds that treaties often lack mechanisms to deal with climate variability and that this impedes the ability of treaties and institutions to manage a crisis, such as a drought situation. Drieschova et al (2008), in a review of 50 agreements for international river basins, find that there are trade-offs between flexibility in treaties and the enforceability of the agreements.…”