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.