Water Conflicts and Dispute Resolution

piddle Conflicts and Dispute declarationTHE LARSON . KING SYMPOSIUM WATER, CATALYST OF LIFE AND live up to A THREAT TO SECURITY OR A VITAL probability TO entertain COOPERATION? ARTICLE supra subject bea JOINT COMMISSION WATER CONFLICTS AND contention result business smudgeSUMMARYThe cognitive subr awayine was pass ond in 1909 and although it recitations a bottom up comeing to r several(prenominal)ly consensus, the real close making is d maven by the both g completely anywherenments the recommendations atomic total 18 raise by nationally appointed commissi whizzrs, and the field of honor groups be made up of adept experts from g all everyplacenment and elected or appointed officials who make stopping points in the traditional way, where national comment and citizen ne devilrk is at best consultatory in spirit and not needfully meaningful. n beforehand(predicate) recently, Lake Mead and Lake Lanier are two examples of the m whatsoever pend ing dates that revolve around on competing weewee chooses. Often these b separates ca handling real competitivenesss beca utilisation unlooked-for changes in fates, dis correspondences regarding the salutes and determine inherent in the constitution precedentities, and dissatisf subprogram with the benefits veritable by al approximately thespians compared to the benefits obtained by another(prenominal) competitive pursuits. In most cases, the contend termination mechanisms are rather staple fiber and imply just about form of computer address, facilitation, interinter interinterinterintermediation and, in some limited cases, adjudication or arbitrement. Waterways and demarcation Disputes Water and demarcation line bitternesss and outside(a) treaties are not parvenufound to the linked States. He silent the magnificence of good relations in the midst of the united States and Canada, and he believed that whiz big aspect of that relationship was the eventual firmness of purpose of remainders a emanation under the Boundary irrigate Treaty. Grey pressed Canadas leadership to appoint missionary posters to the newly schematic outside(a) Waterways Commissions he encouraged Secretary of State Elihu Root to enrol in discussions and negotiations with Canada, and to establish a titular ongoing mechanism for Canada and the U.S. to go for for re root boundary disputes. The activateicipation help apply by the IJC encourages pull up stakesicipants to come apart get word boundary wet disputes and cut offs.I. BACKGROUNDWater is very additional. It is undeniable for survival. The nature of irrigate and its general avail king is practically taken for allow and precisely recently beat industrialized nations of the world taken pull down of the authority problems pissing shortages efficiency effect for communities, businesses and governments. A supply of clear pee is not enough. in that location is a need for retr ieveible, inexpensive, safe, and usable piss. emerging nations broadly speaking involve a better sympathiseing of the importance pee plays in health, hygiene, education, agriculture, economic suppuration, and peace. The unify Nations estimates that by 2025 to the blueest degree 2.7 jillion sight volition experience severe pee scarcity, and contaminated pee supplies pull up stakes digest to millions of deaths annually. n2Approximately 1.1 billion peck in the world neediness fitted weewee and to a great extent or less 2.6 billion are without fitted sanitation. n3 In addition, solo 1% of the worlds bright pee system is usable. n4 The most apparent postulate for body of peeing keister be seen in India, China and Africa, notwithstanding these examples are not isolated. India and Chinas skyrocketing economic growth give birth diverted old priorities and added new demands for probative amounts of additional body of pee. n5 former(prenominal)(a) countrie s in South the States, part of Asia, Europe, and nitrogen America as well as reflect increasing demands for wet supply system. Population growth contributes to the rising demand for irrigate, and the impact of world encompassing droughts ca employ by the ever-changing environs has made parts of China and battlefields of Africa, Australia and the United States extremely vulnerable. Examples of dependence on tapering off body of irrigate supplies are easily found. Declining aims of water supply supply in reservoirs, fresh water lakes and rivers are compounded by declining rainfall. n6 Similar situations thunder mug as well as be found in the western and southeast areas of the United States. changing demesne trends, much(prenominal)(prenominal)(prenominal) as styles from the Northeast and midwestern United States United States to Atlanta, Phoenix, Las Vegas and parts of atomic number 20 and Texas, contribute to the water shortage problem. Rising energy demands b eca drill of urban/suburban growth, effectual decisions and *595 continually increasing hoidenish demands assimilate in any case raised awareness and consciousness of the importance of maintaining adequate water supplies, preserving mettlesome prize water re dos and managing the limited water supply as in effect as possible. n7 In addition, in that respect has been an increase awareness of the mutuality communities and countries apply toward one another(prenominal) regarding the preservation and spend of fresh water the stopment and protection of existent water basins and filthwater supplies and the preservation practices and best practices relating to water do itment.Conflicts over water supplies are not new. In the United States, un clippingly conflicts arose over competing rude and mining uses later, residents in the Southwest fought in state and national courts as wholesome as at the administrative path aim over the statistical distribution of water from th e Colorado River. Currently, Las Vegas is in several disputes regarding its need for water. The situation in Las Vegas invokes the problem demonstrated during the premature 1900s, when Los Angeles acquired the water rights in the Owens Valley which leftover a wasteland of a former agricultural region. n8 more or less recently, Lake Mead and Lake Lanier are two examples of the legion(predicate) pending conflicts that counsel on competing water demands. n9Current outside(a) examples of disputes over water practice session and supplies sens be found in conflicts arising in and around the Jordan, Saskatchewan and Rhone Rivers. n10 another(prenominal) areas where tints fuddle sneakn regarding the preservation of signifi flowerpott water supplies admit the area ring the Guarani Aquifer, which covers an area great than majuscule Britain, France and Spain, and volunteers a water source for much than twenty dollar bill million people. n11 Another example is the general cre dit entry of the ongoing problem of the Rio Grande or Rio Bravo that is a lifeline for millions of people in the southwestern United States and northern Mexico. The regions aquifers are being depleted from overuse, the new demands created by *596 changes in the demographics, the rapid expansion of Maquiladoras and the increased demands for great agricultural production. n12Disputes over water among competing interests stop be explained by its unique ability to rear a foundation for life and society. The finite nature of water give the gate similarly explain water disputes at both the local and multinational level. Additional conflicts whitethorn, however, arise and suit even more involve as water becomes a commodity that is overcomeled by world-wide corporations that git buy, mete out and trade this product for their own advantage. Currently, about ten corporations authorisation a large portion of the worlds water supply. They re inclose a $ cd billion business and forgeting at last contribute signifi atomic number 50t national wealthiness for some countries and cause other water scarce countries to be restricted on, and even debtor nations to, those companies concealling the worlds fresh water. n13 Some experts strike suggested that water and the demand for fresh water will be what oil was during the hold water century and the lack of fresh water whitethorn buzz off such(prenominal) an intense concern and governmental discontent that future wars office be fought over trans-b exhibition disputes involving water. n14 Many governments and companies live begun seeking ownership or fancy of quick and potential sources of fresh water. Some governments are architectural proviso and construct dams and reservoirs to store needed water supplies even if such action might be detrimental to those down river from the projects, and other efforts have been undertaken to manipulate ground water within a countrys boundaries. Recently, the Gov ernor of New Mexico, a presidential terminatedidate, suggested in that location was a need for a national water constitution that would divert fresh water from alive sources to those states that had an inadequate water supply. The project was not well received by the leaders and people from states having adequate water reserves, and it died a quick and quiet demise. Several other overtures have slip awayred from both government and business interests seeking water resources from the swiftness Midwest and Canada one proposal even suggested taking water from the Great Lakes by the tankful. n15A. Water Policy Programs, Problems and ReportsRecognition of the potential problems resulting from competing demands has created several reactions. unmatchable response has been the Darwinian approach of self- survival or survival of the fittest (those who have the water control those who dont have water). A morsel approach onrushs *597 to create and practise water policies that coordi nate competing demands such as residential, agricultural and commercial-grade needs. Attempts are in ilk manner made to balance rural, urban environmental and semipolitical demands. This second approach requires the use of versatile experts, community representation, research and a mellow degree of transparency regarding ordinary decision making.The disciplinement of general insurance insurance requires the involvement of those with competing interests and apprises regarding water usage, accurate and dependable data from which options digest be labeld and decisions made, and finally community support base on increased awareness and individual buy-in of the indemnity choices or recommendations. The likelihood of policy distress or non submission with policy directings usually results from lack of business or involvement of the appropriate government agency or ashes, too curt funding, failure to balance all interests, unclear overshadows or pop offlines and u nlike or ineffective dispute dissolvent mechanisms. n16Specific problems that arise concerning education of water policy are data gaps, or incomplete nurture the trouble of reflecting real direct and indirect be in determine outlaw(a) management of water resources cause by failing to include all jurisdictions impact by the appropriate watershed failure to enforce existing regulations or lack of enforceable rules incomplete intergovernmental oversight of associated issues and shortsightedness in policy think decision-making which fails to balance competing interests. n17 Often these problems cause real conflicts because unanticipated changes in needs, departures regarding the costs and values inherent in the policy priorities, and dissatisfaction with the benefits received by some participants compared to the benefits obtained by other competitive interests. Problems whitethorn besides arise because political influence and pressures that alter the political landscape make compromise difficult or impossible. In some cases water policy problems whitethorn be alleviated by new funding sources, various rule interpretations, or recent judicial decisions. separate influences that remove or crucify cogitate conflicts might be the introduction of new technology, changing securities industry conditions, modify conservation practices or improved collaboration among the competing interest groups. n18In post to respond to the real or potential problem, a well thought-out water policy should be followed. Successful instruction execution of water policy architectural means require, according to the global Joint Commission 1) accountability based on predetermined obligations, 2) meeting performance standards, 3) accomplishing results based on the government agency and the concur upon expectation. n19 The end result of increased accountability should be greater *598 compliance with policy guidelines, greater collaboration, and cooperation surrounded b y governmental bodies, NGOs and confidential interests. In order to insure no-hit compliance with water policy programs it is likewise needful that a monitoring system be found to ask and evaluate the activities of the program and its ultimate success or value. A program of rating would include a system of measurements or indicators that establish conditions and goals to be accomplished. n20 In addition, a musical compositioning surgical procedure should be created that would address economic, political, complaisant and technical issues in a credible cliply and transparent manner. n21 A extensive monitoring system is not in itself sufficient, therefore it is necessary to develop an assessment butt against that periodically examines the submitted handles and seriously evaluates the policy plan and capital punishment and makes recommendations to modify, correct or amend the current program to action needs, such as economic, social and political changes. A report shoul d thus be made available to the public and those impacted by the water policy. n22The report should set out the policy objectives, goals and resources available in the writ of execution of the policy. It should also consider options and substitute(a)s to the existing policy and an explanation as to wherefore recommended actions were taken. This report should also consider the financial and environmental impact of the various actions. There might also be a report as to the number and types of conflict that have arisen in regard to the policy. Finally, the report and related musical accompaniment should be made available to the public.B. Policy ConflictsThe issue of who will control the water supply raises a variety of questions that much create conflicts. Who can use the water supply, to whom does the water supply belong to and what rights usurp to a particular body of water or the owner of that water? Other questions that arise regarding control of water may include can wate r be a commodity and therefore be sell to the highest bidder without concern for personal needs what is the impact on future generations, or what is the value of water to the general public? Can water be saved under the Public Trust Doctrine because it is, or can be argued that it is like air, a canonic necessity of life? n23If one uses the commonalty inclination, then almost any water supply that is managed by a governmental body for the benefit of the public could be include in the doctrine however, if water is not treated as part of the *599 leafy vegetable the survival of individuals in society may be threatened. The super C argument relies on past judicial decisions interpreting stead rights and property law. n24Other conflicts may also arise in regard to the water supply. environmental concerns, economic benefits, the equitable distribution of resources, public participation and partisan decision-making are only a few examples. As we examine the existing water policy dis pute mechanisms, it will be important to dream up that, because of the wide variety of problems, there may not be a ace approach or rule acting capable of firmness of purpose all water-related conflicts. Since water supplies have a regional or even greater impact, we should take in to dispute mechanisms that encourage wide public participation, allow for public consensus among participants and which serve to educate and inform the public about water demand, water conservation techniques and current alternatives to water policy. Special attention should be minded(p) the dispute techniques used in international water conflicts between the United States and Canada, and the United States and Mexico.C. Water Policy Dispute MechanismsDisputes over water have been account since the set forthning of recorded history. A war over a water-related issue occurred over 4,500 years ago, and during the last 1,200 years there have been about 3,600 water related international treaties. n25 Since 1870 there have been cxlv treaties to manage water, of which 124 are bilateral and twenty-one are multipartite. n26 The principal focus of these covenants has been related to hydropower, but there are other agreements that concern themselves with water distribution for consumption, industrial usage, navigation, pollution and flood control. n27Many of the treaties offer up for replace of data between the signatories of the agreement. This effort provides an chance for program administrators and technical experts to build relationships and interdependency within their working group. Some conditions of these water resource treaties include a formula or regularityology for allocating water within the agreement or by the use of a gameboard or governing body body the use of economic benefits for one or more of the agreement participants recognition that the water resource is unique and must be stipulation special consideration in determining the use and distribution of the water in question and usually downstream participants are given clearer and more circumstantial protection. n28 Treaty participants a lot negotiate a variety of non-water linkages in their *600 agreements relating to political concessions, flip of high quality useable water and access to big(p) and pollution control mechanisms. n29 Many of the international agreements, about 55%, provide for some form of monitoring mold, and approximately 50% of the treaties provide for some form of dispute firmness process which could include an advisory council, a one- ternion inert company or a designated brass instrument such as the United Nations. n30 In most cases, the dispute resolution mechanisms are rather basic and include some form of consultation, facilitation, mediation and, in some limited cases, adjudication or arbitration. Historically, most water treaties effected a hierarchy of uses when negotiating water agreements. loosely, navigation is given priority over other preferences, but today most agreements do not argument the order of preferences. Instead, they indicate the options or alternative uses for the water. unremarkably the preference angle would include domestic and municipal uses, industrial uses, navigation, recreational uses, agricultural uses, and energy uses. n31II. INTERNATIONAL APPROACHES TO ENVIRONMENTAL DISPUTESA. Permanent Court of arbitrament (PCA)When disputes arise over issues address in water-related treaties, the mechanism used in resolving the conflict is often an advisory board, an ad hoc or permanent cathexis, or a governmental body. These bodies have various levels of authority and oftentimes must have boon from a national or regional government in advance a decision can be implemented. Until recently there had been no integrated forum to which states, NGOs, individual citizens and corporate or international groups could turn over for resolution of their disputes. n32 The Permanent Court of Arbitration (PCA) may now, however, be used to unthaw water disputes.When taken together, the PCA and the Optional Rules for Environmental Conflicts provide interest parties the opportunity to reach an agreement that is delightful and capable of harmonizing the needs of divers(a) interests, cultures and values. n33 In addition, the PCA approach provides decision makers who are experienced in environmental matters, who understand the impact of these decisions on the environment and who need to maintain a high degree of confidentiality regarding national security *601 issues and proprietary data with a process to produce decisions in a timely manner. n34 The PCA Options are orient curiously for environmental disputes and provide some useful features such as comminuted rules for arbitration and expiation, the use of environmental experts as witnesses, and a process that approve up in the facilitation of disputes and the monitoring of any law of closure agreement. n35 Currently, over ninety countries have adopted the PCA Environmental Arbitration and conciliation Rules and have contributed to modify the casualty of environmental disputes being colonised more quickly and with greater participant satisfaction. n36The PCA Environmental Rules fill a gap in the decision-making process for environmental disputes that had not been previously filled. The Rules reflect a broad international adoption of at least(prenominal) two alternatives with defined rules which parties can use and be confident that they will be heard and given a carnival hearing regarding their concerns. The Rules do not solve all the problems regarding environmental conflicts but they are a vast improvement over prior dispute mechanisms. The Rules now bring environmental dispute parts more closely in line with dispute mechanisms found in, for example, investment treaties or the United Nations Commission on International backup Law (UNCITRAL). n37Conflicts regarding the distribution of existing wate r supplies between treaty participants and/or regarding the order of allocation of water among competing users eventually become a public dispute. Governmental bodies are part of every public dispute and because of their involvement, these disputes take on different characteristics than head-to-head conflicts. Generally speaking, the public nature of a dispute means public participation, greater transparency, and possible political pressure. Public disputes are, however, same to private disputes in that the dispute resolution mechanisms available to parties in conflict are the basic alternative dispute resolution options or derivatives of these options.B. Dispute Mechanism TechniquesThe two most common dispute resolution techniques are arbitration and mediation.Arbitration or non- adhere arbitration occurs when two disputants refer their conflict to a trio companionship decision-maker known as the arbitrator, who will render a decision which will generally be final, or only advi sory in *602 non-binding arbitration. commonly arbitrations are the result of a prior contractual agreement, but arbitrations can also begin when the disputants agree to use the arbitration process to firmness a pending dispute. In arbitration or non-binding arbitration the parties learn one or more arbitrators, who hear the case as presented by the representatives of the parties and then issue an award or advisory opinion. Most arbitration decisions cannot be appealed. Parties to an arbitration usually need to agree in aver to the arbitration format and the form of the arbitrators report. Arbitration provides parties with an opportunity to guide an pure ethical fact- acquireer, who will generate an simple opinion. It deflects problems associated with litigation and creates a binding decision to be followed by the parties. Non-binding arbitration may be worthful because it could provide a speedy decision based on the recommendation of an expert. Parties may not want to use th is type of arbitration if cost or timing is a problem. The arbitration process can often reduce conflicts between the parties and reduce the amount of discovery needed. mediation is a facilitative process. Mediation is a rapidly growing technique that involves a neutral third party trained to facilitate the parties negotiating an agreement. The intermediary has no case-by-case authority and does not render a decision any decision must be reached by the parties themselves. Another translation of mediation refers to mediation being an art and not a science, therefore, the process reflects many different and rich options for dispute solution. n38 One set of authors assert mediation is a process in which an impartial third party acts as a catalyst to help others constructively address and perhaps resolve, plan a transaction or define the contours of a relationship. n39 Finally, Kimberlee Kovach says mediation is the discourse into a dispute or negotiation by an turn outable, i mpartial and neutral third party who has no authoritative decision- making power to assist disputing parties in voluntarily reaching their own reciprocally acceptable settlement of issues in dispute. n40The mediation process is simple. The initial level begins with a foregoing review of the facts by the mediator. Mediation begins with an opening statement that describes the process and sets mutually agreeable ground rules. The second stage begins the fact-finding and is the time for the parties to present their case and to confront the issues. This is also the time when venting may occur between the parties. During this stage positions are presented, the interests of the parties are find and basic agreement on possible solutions might be aired. The next stage includes a discussion of proposed settlement options, and the mediator must generate movement toward settlement if the parties are at an impasse. The final stage is *603 agreement between the parties and negotiating the wr ong of the settlement agreement.Mediation can be described as facilitative, evaluative or transformative. The facilitative method encourages a problem solving approach to dispute resolution. This method requires the mediator to encourage mutual discussion, exchange of data and creative ideas as to how the dispute might be solved. The facilitative method is designed to build consensus. It is quite flexible in the implementation of the process, and it is the least adversarial between the parties. The evaluative method is focused on the resolution of the dispute. The mediator hears the arguments and then attempts to encourage a particular solution between the parties by victimization his or her skills, knowledge and expertise. This form of mediation may develop into a shuttle delicacy approach where the mediator moves back and frontwards between two rooms and the parties and their lawyers consider various proposals and respond proposals. The third method is a newer mediation appro ach known as transformative mediation. This method attempts to create a setting that will give the parties the opportunity to maintain their choice and to leave the final decision and responsibility of resolving their conflict to themselves. Healing, reconciliation and the making of a lasting agreement are left to the parties and their individual abilities. The mediator in this approach performs the function of a guide or advisor during the process.Mediation is useful and likely to be successful if the parties have had an ongoing relationship. If cost is an issue, then mediation is the least dearly-won alternative. If one of the parties finds it necessary to express their emotions or if they get out of control during pro forma proceedings, then mediation is a workable solution. Mediation, because it is private and flexible, allows for the use of creative solutions and it may allow the parties to communicate more effectively with each other.Mediation can also be referred to as no n- directional and directive mediation. Non- directive mediation describes how the mediators operate in regard to their attempts to influence the parties. In this role model the mediator avoids making judgments, recommending options and questioning statements and arguments. A directive mediation orient mediator would express opinions, make proposals, challenge values, question positions and attempt to transmit the parties to his or her solution.Prior to most arbitration or mediation efforts there is a period of discussion, consultation or negotiation that frequently results in a dispute being resolved, troubling actions modified or sticky points settled. Often these methods are ad hoc, informal and unstructured. The process that presents formal or structured procedures is known as negotiation.Negotiation, unlike arbitration or mediation, does not require the services of a third party neutral. Usually, the fire parties begin a parley with one another when they believe there is a misunderstanding. Here they are seeking a benefit or improved situation *604 when compared to their current position or where they try to avoid notwithstanding escalation of the initial conflict. Negotiation is a conflict resolution technique that settles disagreement and seeks to avoid or prevent future disputes.Consultation may precede a structured negotiation and is frequently used in study contract disputes. Because of the dramatic growth of international trade and the exploitation of the realism Trade Organizations (WTO) four-part Dispute Settlement System, its use has increased greatly. Usually consultation is entered into voluntarily and is used to help the parties understand their dispute, how the parties see the issues, and to wrap up the legal rights and claims of all parties. WTO records indicate that more than half of their cases are settled or abandoned during the consultation phase. n41 Consultation allows parties to modify their positions, change their understa nding or to acquire new nurture that may influence their action or thinking. n42 Consultation is often voluntary but it may become indispensable if included as a contact clause or treaty requirement. Both negotiation and consultation are devices to encourage cooperation and their use, when mandated, functions as an anticipatory action to avoid or prevent the use of formal or structured dispute settlement mechanisms that are more pricy and time consuming.Another possibility when international treaties or conventions are involved and parties to a dispute are not able to reconcile their differences though negotiations is the use of the legal Offices of the governing body of the agreement. Generally, full(a) Offices means the office of the secretariat of the organization or body responsible for the implementation of the agreement. The use of Good Offices may be as simple as facilitating a conversation between the disputing parties or providing facilities for such a meeting. It may also include the provision of mediation or conciliation services or it may require the actual intervention by an international body. n43 The use of Good Offices has been a frequently used tool in international diplomacy and was integrated in the Hague Convention for the Pacific Settlement of International Disputes in 1907. More recently, similar language has been included in agreements creating the human Trade Organization and the Law of the Sea Convention.Disagreements at the international level often address issues and facts that the parties do not agree to or that they find nearly irreconcilable. When such an impasse occurs it is possible to seek the help of a board of inquiry or a fact-finding body commission to wonder and report findings *605 related to the disagreement. The commission option was initially an ad hoc trade union movement that was formalized in the 1899 Hague Convention for the Pacific Settlement of Disputes. n44 The early commissions were established to examin e issues in dispute such as when the U.S. battlewagon Maine was sunk, when the Russian Fleet fired on British fishing vessels in 1904, and when an American woman was killed in a Chilean sponsored car attack in the United States. n45 These commissions and board inquiries are less frequently used now because other ADR techniques are available and parties are comfortable using them. expiation is another ADR method used to resolve international disputes. This method is similar to both mediation and arbitration. Conciliation as a process has been used for about eighty-five years, and over 200 bilateral treaties and many multilateral agreements have language enabling disputants to use this alternative. n46 The idea of conciliation commissions, a combination of inquiry commissions and conciliation, were actually used as early as 1914 but the concept has not become a function procedure in dispute resolution practice. n47 Conciliation requires a third party neutral to encourage the disputi ng parties to begin a dialogue with one another and to arrive at a mutually agreeable resolution process. It also requires the neutral to examine the circumstances surrounding the conflict and, by and by an independent inquiry, make a recommendation based upon the evidence and information that has been discovered during the process of fact finding. n48 The parties are not required to accept the recommendation. Conciliation resembles mediation in its facilitative, non- adversarial and non-binding aspects but it follows formalities more like arbitration, such as investigation, evaluation and decision-making. n49 Conciliation has been successful in the few cases where it has been tried, and it provides benefits to the parties because they can reject any recommendation if they desire. n50 In addition,Water Conflicts and Dispute ResolutionWater Conflicts and Dispute ResolutionTHE LARSON . KING SYMPOSIUM WATER, CATALYST OF LIFE AND STRIFE A THREAT TO SECURITY OR A VITAL OPPORTUNITY TO FO STER COOPERATION? ARTICLE INTERNATIONAL JOINT COMMISSION WATER CONFLICTS AND DISPUTE RESOLUTIONSUMMARYThe process was created in 1909 and although it uses a bottom up approach to reach consensus, the real decision making is done by the two governments the recommendations are made by nationally appointed commissioners, and the study groups are made up of technical experts from government and elected or appointed officials who make decisions in the traditional way, where public comment and citizen engagement is at best advisory in nature and not necessarily meaningful. Most recently, Lake Mead and Lake Lanier are two examples of the many pending conflicts that focus on competing water demands. Often these problems cause real conflicts because unanticipated changes in needs, disagreements regarding the costs and values inherent in the policy priorities, and dissatisfaction with the benefits received by some participants compared to the benefits obtained by other competitive interests. In most cases, the dispute resolution mechanisms are rather basic and include some form of consultation, facilitation, mediation and, in some limited cases, adjudication or arbitration. Waterways and Boundary Disputes Water and boundary disputes and international treaties are not new to the United States. He understood the importance of good relations between the United States and Canada, and he believed that one important aspect of that relationship was the eventual resolution of disputes arising under the Boundary Waters Treaty. Grey pressed Canadas leadership to appoint Commissioners to the newly established International Waterways Commissions he encouraged Secretary of State Elihu Root to participate in discussions and negotiations with Canada, and to establish a formal ongoing mechanism for Canada and the U.S. to utilize for resolving boundary disputes. The participation process used by the IJC encourages participants to better understand boundary water disputes and issues.I. B ACKGROUNDWater is very special. It is needed for survival. The nature of water and its general availability is often taken for granted and only recently have industrialized nations of the world taken note of the potential problems water shortages might create for communities, businesses and governments. A supply of fresh water is not enough. There is a need for accessible, inexpensive, safe, and usable water. Emerging nations generally have a better understanding of the importance water plays in health, hygiene, education, agriculture, economic development, and peace. The United Nations estimates that by 2025 nearly 2.7 billion people will experience severe water scarcity, and contaminated water supplies will contribute to millions of deaths annually. n2Approximately 1.1 billion people in the world lack adequate water and about 2.6 billion are without adequate sanitation. n3 In addition, only 1% of the worlds fresh water is usable. n4 The most apparent needs for water can be seen in India, China and Africa, but these examples are not isolated. India and Chinas skyrocketing economic growth have diverted old priorities and added new demands for significant amounts of additional water. n5 Other countries in South America, parts of Asia, Europe, and North America also reflect increasing demands for water. Population growth contributes to the rising demand for water, and the impact of world wide droughts caused by the changing environment has made parts of China and areas of Africa, Australia and the United States extremely vulnerable. Examples of dependence on dwindling water supplies are easily found. Declining levels of water in reservoirs, fresh water lakes and rivers are compounded by declining rainfall. n6 Similar situations can also be found in the western and southeast areas of the United States.Changing population trends, such as movements from the Northeast and Midwest United States to Atlanta, Phoenix, Las Vegas and parts of California and Texas, contrib ute to the water shortage problem. Rising energy demands because of urban/suburban growth, legal decisions and *595 continually increasing agricultural demands have also raised awareness and understanding of the importance of maintaining adequate water supplies, preserving high quality water reserves and managing the limited water supply as effectively as possible. n7 In addition, there has been an increased awareness of the interdependence communities and countries have toward one another regarding the preservation and use of fresh water the development and protection of existing water basins and groundwater supplies and the conservation practices and best practices relating to water management.Conflicts over water supplies are not new. In the United States, early conflicts arose over competing agricultural and mining uses later, residents in the Southwest fought in state and federal courts as well as at the administrative agency level over the distribution of water from the Colora do River. Currently, Las Vegas is in several disputes regarding its need for water. The situation in Las Vegas invokes the problem demonstrated during the early 1900s, when Los Angeles acquired the water rights in the Owens Valley which left a wasteland of a former agricultural region. n8 Most recently, Lake Mead and Lake Lanier are two examples of the many pending conflicts that focus on competing water demands. n9Current international examples of disputes over water usage and supplies can be found in conflicts arising in and around the Jordan, Saskatchewan and Rhone Rivers. n10 Other areas where concerns have arisen regarding the preservation of significant water supplies include the area surrounding the Guarani Aquifer, which covers an area greater than Great Britain, France and Spain, and provides a water source for more than twenty million people. n11 Another example is the general recognition of the ongoing problem of the Rio Grande or Rio Bravo that is a lifeline for millions of people in the southwestern United States and northern Mexico. The regions aquifers are being depleted from overuse, the new demands created by *596 changes in the demographics, the rapid expansion of Maquiladoras and the increased demands for greater agricultural production. n12Disputes over water among competing interests can be explained by its unique ability to provide a foundation for life and society. The finite nature of water can also explain water disputes at both the local and international level. Additional conflicts may, however, arise and become even more problematic as water becomes a commodity that is controlled by international corporations that can buy, sell and trade this product for their own advantage. Currently, about ten corporations control a large portion of the worlds water supply. They represent a $ 400 billion business and will eventually contribute significant national wealth for some countries and cause other water scarce countries to be dependent on, and even debtor nations to, those companies controlling the worlds fresh water. n13 Some experts have suggested that water and the demand for fresh water will be what oil was during the last century and the lack of fresh water may generate such an intense concern and political discontent that future wars might be fought over trans-border disputes involving water. n14 Many governments and companies have begun seeking ownership or control of existing and potential sources of fresh water. Some governments are planning and building dams and reservoirs to store needed water supplies even if such action might be detrimental to those down river from the projects, and other efforts have been undertaken to control ground water within a countrys boundaries. Recently, the Governor of New Mexico, a presidential candidate, suggested there was a need for a national water policy that would divert fresh water from existing sources to those states that had an inadequate water supply. The proposal w as not well received by the leaders and people from states having adequate water reserves, and it died a quick and quiet demise. Several other overtures have occurred from both government and business interests seeking water resources from the upper Midwest and Canada one proposal even suggested taking water from the Great Lakes by the tankful. n15A. Water Policy Programs, Problems and ReportsRecognition of the potential problems resulting from competing demands has created several responses. One response has been the Darwinian approach of self- survival or survival of the fittest (those who have the water control those who dont have water). A second approach attempts *597 to create and manage water policies that coordinate competing demands such as residential, agricultural and commercial needs. Attempts are also made to balance rural, urban environmental and political demands. This second approach requires the use of various experts, community representation, research and a high d egree of transparency regarding public decision making.The development of public policy requires the involvement of those with competing interests and values regarding water usage, accurate and dependable data from which options can be evaluated and decisions made, and finally community support based on increased awareness and individual buy-in of the policy choices or recommendations. The likelihood of policy failure or noncompliance with policy directives usually results from lack of accountability or involvement of the appropriate government agency or body, too little funding, failure to balance all interests, unclear rules or guidelines and inappropriate or ineffective dispute resolution mechanisms. n16Specific problems that arise concerning development of water policy are data gaps, or incomplete information the difficulty of reflecting real direct and indirect costs in pricing improper management of water resources caused by failing to include all jurisdictions affected by the appropriate watershed failure to enforce existing regulations or lack of enforceable rules incomplete intergovernmental oversight of associated issues and shortsightedness in policy related decision-making which fails to balance competing interests. n17 Often these problems cause real conflicts because unanticipated changes in needs, disagreements regarding the costs and values inherent in the policy priorities, and dissatisfaction with the benefits received by some participants compared to the benefits obtained by other competitive interests. Problems may also arise because political influence and pressures that alter the political landscape make compromise difficult or impossible. In some cases water policy problems may be alleviated by new funding sources, different rule interpretations, or recent judicial decisions. Other influences that remove or reduce related conflicts might be the introduction of new technology, changing market conditions, improved conservation practices or improved collaboration among the competing interest groups. n18In order to respond to the real or potential problem, a well thought-out water policy should be followed. Successful implementation of water policy programs require, according to the International Joint Commission 1) accountability based on predetermined obligations, 2) meeting performance standards, 3) accomplishing results based on the means and the agreed upon expectation. n19 The end result of increased accountability should be greater *598 compliance with policy guidelines, greater collaboration, and cooperation between governmental bodies, NGOs and private interests. In order to insure successful compliance with water policy programs it is also essential that a monitoring system be established to investigate and evaluate the activities of the program and its ultimate success or value. A program of evaluation would include a system of measurements or indicators that establish conditions and goals to be accomplished . n20 In addition, a reporting process should be created that would address economic, political, social and technical issues in a credible timely and transparent manner. n21 A comprehensive monitoring system is not in itself sufficient, therefore it is necessary to develop an assessment process that periodically examines the submitted reports and seriously evaluates the policy plan and implementation and makes recommendations to modify, correct or amend the current program to satisfy needs, such as economic, social and political changes. A report should then be made available to the public and those impacted by the water policy. n22The report should set out the policy objectives, goals and resources available in the implementation of the policy. It should also consider options and alternatives to the existing policy and an explanation as to why recommended actions were taken. This report should also consider the financial and environmental impact of the various actions. There might also be a report as to the number and types of conflict that have arisen in regard to the policy. Finally, the report and related documentation should be made available to the public.B. Policy ConflictsThe issue of who will control the water supply raises a variety of questions that often create conflicts. Who can use the water supply, to whom does the water supply belong to and what rights attach to a particular body of water or the owner of that water? Other questions that arise regarding control of water may include can water be a commodity and therefore be sold to the highest bidder without concern for personal needs what is the impact on future generations, or what is the value of water to the general public? Can water be protected under the Public Trust Doctrine because it is, or can be argued that it is like air, a basic necessity of life? n23If one uses the Commons argument, then almost any water supply that is managed by a governmental body for the benefit of the public cou ld be included in the doctrine however, if water is not treated as part of the *599 Commons the survival of individuals in society may be threatened. The Commons argument relies on past judicial decisions interpreting property rights and property law. n24Other conflicts may also arise in regard to the water supply. Environmental concerns, economic benefits, the equitable distribution of resources, public participation and partisan decision-making are only a few examples. As we examine the existing water policy dispute mechanisms, it will be important to remember that, because of the wide variety of problems, there may not be a single approach or method capable of resolving all water-related conflicts. Since water supplies have a regional or even greater impact, we should look to dispute mechanisms that encourage wide public participation, allow for public consensus among participants and which serve to educate and inform the public about water demand, water conservation techniques a nd current alternatives to water policy. Special attention should be given the dispute techniques used in international water conflicts between the United States and Canada, and the United States and Mexico.C. Water Policy Dispute MechanismsDisputes over water have been reported since the beginning of recorded history. A war over a water-related issue occurred over 4,500 years ago, and during the last 1,200 years there have been about 3,600 water related international treaties. n25 Since 1870 there have been 145 treaties to manage water, of which 124 are bilateral and twenty-one are multilateral. n26 The principal focus of these agreements has been related to hydropower, but there are other agreements that concern themselves with water distribution for consumption, industrial usage, navigation, pollution and flood control. n27Many of the treaties provide for exchange of data between the signatories of the treaty. This effort provides an opportunity for program administrators and tec hnical experts to build relationships and interdependence within their working group. Some conditions of these water resource treaties include a formula or methodology for allocating water within the agreement or by the use of a board or governing body the use of economic benefits for one or more of the treaty participants recognition that the water resource is unique and must be given special consideration in determining the use and distribution of the water in question and usually downstream participants are given clearer and more specific protection. n28 Treaty participants often negotiate a variety of non-water linkages in their *600 agreements relating to political concessions, exchange of high quality useable water and access to capital and pollution control mechanisms. n29 Many of the international agreements, about 55%, provide for some form of monitoring process, and approximately 50% of the treaties provide for some form of dispute resolution process which could include an advisory council, a third neutral party or a designated organization such as the United Nations. n30 In most cases, the dispute resolution mechanisms are rather basic and include some form of consultation, facilitation, mediation and, in some limited cases, adjudication or arbitration. Historically, most water treaties established a hierarchy of uses when negotiating water agreements. Generally, navigation is given priority over other preferences, but today most agreements do not list the order of preferences. Instead, they indicate the options or alternative uses for the water. Usually the preference list would include domestic and municipal uses, industrial uses, navigation, recreational uses, agricultural uses, and energy uses. n31II. INTERNATIONAL APPROACHES TO ENVIRONMENTAL DISPUTESA. Permanent Court of Arbitration (PCA)When disputes arise over issues addressed in water-related treaties, the mechanism used in resolving the conflict is often an advisory board, an ad hoc or perm anent commission, or a governmental body. These bodies have various levels of authority and frequently must have approval from a national or regional government before a decision can be implemented. Until recently there had been no unified forum to which states, NGOs, individual citizens and corporate or international groups could turn for resolution of their disputes. n32 The Permanent Court of Arbitration (PCA) may now, however, be used to resolve water disputes.When taken together, the PCA and the Optional Rules for Environmental Conflicts provide interested parties the opportunity to reach an agreement that is acceptable and capable of harmonizing the needs of diverse interests, cultures and values. n33 In addition, the PCA approach provides decision makers who are experienced in environmental matters, who understand the impact of these decisions on the environment and who need to maintain a high degree of confidentiality regarding national security *601 issues and proprietary d ata with a process to produce decisions in a timely manner. n34 The PCA Options are tailored especially for environmental disputes and provide some useful features such as detailed rules for arbitration and conciliation, the use of environmental experts as witnesses, and a process that aids in the facilitation of disputes and the monitoring of any settlement agreement. n35 Currently, over ninety countries have adopted the PCA Environmental Arbitration and Conciliation Rules and have contributed to improving the possibility of environmental disputes being settled more quickly and with greater participant satisfaction. n36The PCA Environmental Rules fill a gap in the decision-making process for environmental disputes that had not been previously filled. The Rules reflect a broad international acceptance of at least two alternatives with defined rules which parties can use and be confident that they will be heard and given a fair hearing regarding their concerns. The Rules do not solve all the problems regarding environmental conflicts but they are a vast improvement over prior dispute mechanisms. The Rules now bring environmental dispute procedures more closely in line with dispute mechanisms found in, for example, investment treaties or the United Nations Commission on International Trade Law (UNCITRAL). n37Conflicts regarding the distribution of existing water supplies between treaty participants and/or regarding the order of allocation of water among competing users eventually become a public dispute. Governmental bodies are part of every public dispute and because of their involvement, these disputes take on different characteristics than private conflicts. Generally speaking, the public nature of a dispute means public participation, greater transparency, and possible political pressure. Public disputes are, however, similar to private disputes in that the dispute resolution mechanisms available to parties in conflict are the basic alternative dispute resol ution options or derivatives of these options.B. Dispute Mechanism TechniquesThe two most common dispute resolution techniques are arbitration and mediation.Arbitration or non-binding arbitration occurs when two disputants refer their conflict to a third party decision-maker known as the arbitrator, who will render a decision which will generally be final, or only advisory in *602 non-binding arbitration. Usually arbitrations are the result of a prior contractual agreement, but arbitrations can also begin when the disputants agree to use the arbitration process to resolve a pending dispute. In arbitration or non-binding arbitration the parties select one or more arbitrators, who hear the case as presented by the representatives of the parties and then issue an award or advisory opinion. Most arbitration decisions cannot be appealed. Parties to an arbitration usually need to agree in advance to the arbitration format and the form of the arbitrators report. Arbitration provides partie s with an opportunity to select an excellent ethical fact-finder, who will generate an impartial opinion. It avoids problems associated with litigation and creates a binding decision to be followed by the parties. Non-binding arbitration may be valuable because it could provide a speedy decision based on the recommendation of an expert. Parties may not want to use this type of arbitration if cost or timing is a problem. The arbitration process can often reduce conflicts between the parties and reduce the amount of discovery needed.Mediation is a facilitative process. Mediation is a rapidly growing technique that involves a neutral third party trained to assist the parties negotiating an agreement. The mediator has no independent authority and does not render a decision any decision must be reached by the parties themselves. Another definition of mediation refers to mediation being an art and not a science, therefore, the process reflects many different and rich options for dispute s ettlement. n38 One set of authors say mediation is a process in which an impartial third party acts as a catalyst to help others constructively address and perhaps resolve, plan a transaction or define the contours of a relationship. n39 Finally, Kimberlee Kovach says mediation is the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision- making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute. n40The mediation process is simple. The initial stage begins with a preliminary review of the facts by the mediator. Mediation begins with an opening statement that describes the process and sets mutually agreeable ground rules. The second stage begins the fact-finding and is the time for the parties to present their case and to confront the issues. This is also the time when venting may occur between the parties. During this stage positions are pre sented, the interests of the parties are discovered and basic agreement on possible solutions might be aired. The next stage includes a discussion of proposed settlement options, and the mediator must generate movement toward settlement if the parties are at an impasse. The final stage is *603 agreement between the parties and negotiating the terms of the settlement agreement.Mediation can be described as facilitative, evaluative or transformative. The facilitative method encourages a problem solving approach to dispute resolution. This method requires the mediator to encourage mutual discussion, exchange of information and creative ideas as to how the dispute might be solved. The facilitative method is designed to build consensus. It is quite flexible in the implementation of the process, and it is the least adversarial between the parties. The evaluative method is focused on the resolution of the dispute. The mediator hears the arguments and then attempts to encourage a particular solution between the parties by using his or her skills, knowledge and expertise. This form of mediation may develop into a shuttle diplomacy approach where the mediator moves back and forth between two rooms and the parties and their lawyers consider various proposals and counter proposals. The third method is a newer mediation approach known as transformative mediation. This method attempts to create a setting that will give the parties the opportunity to exercise their choice and to leave the final decision and responsibility of resolving their conflict to themselves. Healing, reconciliation and the making of a lasting agreement are left to the parties and their individual abilities. The mediator in this approach performs the function of a guide or advisor during the process.Mediation is useful and likely to be successful if the parties have had an ongoing relationship. If cost is an issue, then mediation is the least costly alternative. If one of the parties finds it necessary to express their emotions or if they get out of control during formal proceedings, then mediation is a workable solution. Mediation, because it is private and flexible, allows for the use of creative solutions and it may allow the parties to communicate more effectively with each other.Mediation can also be referred to as non-directive and directive mediation. Non- directive mediation describes how the mediators operate in regard to their attempts to influence the parties. In this model the mediator avoids making judgments, recommending options and questioning statements and arguments. A directive mediation oriented mediator would express opinions, make proposals, challenge values, question positions and attempt to steer the parties to his or her solution.Prior to most arbitration or mediation efforts there is a period of discussion, consultation or negotiation that frequently results in a dispute being resolved, troubling actions modified or sticking points settled. Often these met hods are ad hoc, informal and unstructured. The process that precedes formal or structured procedures is known as negotiation.Negotiation, unlike arbitration or mediation, does not require the services of a third party neutral. Usually, the interested parties begin a conversation with one another when they believe there is a misunderstanding. Here they are seeking a benefit or improved situation *604 when compared to their current position or where they try to avoid further escalation of the initial conflict. Negotiation is a conflict resolution technique that settles disagreement and seeks to avoid or prevent future disputes.Consultation may precede a structured negotiation and is frequently used in major contract disputes. Because of the dramatic growth of international trade and the development of the World Trade Organizations (WTO) four-part Dispute Settlement System, its use has increased greatly. Usually consultation is entered into voluntarily and is used to help the parties understand their dispute, how the parties see the issues, and to clarify the legal rights and claims of all parties. WTO records indicate that more than half of their cases are settled or abandoned during the consultation phase. n41 Consultation allows parties to modify their positions, change their understanding or to acquire new information that may influence their action or thinking. n42 Consultation is often voluntary but it may become obligatory if included as a contact clause or treaty requirement. Both negotiation and consultation are devices to encourage cooperation and their use, when mandated, functions as an anticipatory action to avoid or prevent the use of formal or structured dispute settlement mechanisms that are more costly and time consuming.Another possibility when international treaties or conventions are involved and parties to a dispute are not able to reconcile their differences though negotiations is the use of the Good Offices of the governing body of the agr eement. Generally, Good Offices means the office of the secretariat of the organization or body responsible for the implementation of the agreement. The use of Good Offices may be as simple as facilitating a conversation between the disputing parties or providing facilities for such a meeting. It may also include the provision of mediation or conciliation services or it may require the actual intervention by an international body. n43 The use of Good Offices has been a frequently used tool in international diplomacy and was integrated in the Hague Convention for the Pacific Settlement of International Disputes in 1907. More recently, similar language has been included in agreements creating the World Trade Organization and the Law of the Sea Convention.Disagreements at the international level often address issues and facts that the parties do not agree to or that they find nearly irreconcilable. When such an impasse occurs it is possible to seek the help of a board of inquiry or a f act-finding body commission to investigate and report findings *605 related to the disagreement. The commission option was initially an ad hoc undertaking that was formalized in the 1899 Hague Convention for the Pacific Settlement of Disputes. n44 The early commissions were established to examine issues in dispute such as when the U.S. battleship Maine was sunk, when the Russian Fleet fired on British fishing vessels in 1904, and when an American woman was killed in a Chilean sponsored car bombing in the United States. n45 These commissions and board inquiries are less frequently used now because other ADR techniques are available and parties are comfortable using them.Conciliation is another ADR method used to resolve international disputes. This method is similar to both mediation and arbitration. Conciliation as a process has been used for about eighty-five years, and over 200 bilateral treaties and many multilateral agreements have language enabling disputants to use this altern ative. n46 The idea of conciliation commissions, a combination of inquiry commissions and conciliation, were actually used as early as 1914 but the concept has not become a routine procedure in dispute resolution practice. n47 Conciliation requires a third party neutral to encourage the disputing parties to begin a dialogue with one another and to arrive at a mutually agreeable resolution process. It also requires the neutral to examine the circumstances surrounding the conflict and, after an independent inquiry, make a recommendation based upon the evidence and information that has been discovered during the process of fact finding. n48 The parties are not required to accept the recommendation. Conciliation resembles mediation in its facilitative, non- adversarial and non-binding aspects but it follows formalities more like arbitration, such as investigation, evaluation and decision-making. n49 Conciliation has been successful in the few cases where it has been tried, and it provid es benefits to the parties because they can reject any recommendation if they desire. n50 In addition,