The introduction of a model water code in the Mediterranean region could contribute to water law reform and promote equitable allocation and sustainable use of water resources.

Growing water scarcity around the world means water laws need to be modernized and reformed, particularly in arid regions such as the Mediterranean. Sustainable practices – both ancient and modern – should be embraced to preserve both water quantity and quality.

The academic sphere has long advocated sustainable water management. Unfortunately, there is often a translation gap between new understanding and the creation of laws. Students at Cornell Law School are working with an interdisciplinary team to examine the possible role of a model water code as a tool to promote sound local water governance in the Mediterranean region.

What is a model code, and how can it help?

A model code can be seen as a template for legal reform – like a cookbook, from which the cook can follow a recipe to the letter or modify it according to taste. Model codes do not seek to create uniformity between nations, but rather to promote clarification, greater simplicity and accessibility. They may also attempt to advance common understanding and application of relevant international legal instruments.

One example of an influential model code in the United States is the Model Penal Code, which was introduced in the 1960s and aimed to, among other things, update and standardize the penal code in the United States. There are 52 criminal codes in the US, with significant variance between them. Although many provisions of the code were not adopted in all (indeed, most) states, it has helped reform, and created greater consistency between the various states.

Even if it is not adopted, the presence of a model code can foster better understanding of the legal problems it addresses. By making sound institutional, technical, and legal understanding easily available to those who seek reform, the code may assist in the effective distribution of resources – both economic and otherwise.

What should a model code contain?

The key objective of the model water code is to help water-scarce nations to modernize and update their water laws in order to achieve equitable allocation and ensure sustainable use. One starting point for considering the components of a model water code are the hard and soft law instruments of international law. Portions of these agreements such as the Aarhus Convention contain provisions that can be translated to the local level.

Lessons from international law: the Aarhus Convention

The Aarhus pillars – part of the 1997 Aarhus Convention – provide useful guidelines for a model water code. These three pillars are access to information, public participation in decision-making and access to justice. The first pillar imposes a duty on national governments to disseminate information and promote public awareness. The second pillar supports the inclusion of citizen groups in decision-making and has been interpreted to require an environmental impact assessment for projects that will have a significant adverse effect on the environment. The third pillar – access to justice – could be transposed into the model code as a provision allowing citizens and non-governmental organizations to sue authorities that have not fulfilled their duties. Adding such accountability measures will give government action concerning water more legitimacy.

The equitable allocation of water

The imbalance between supply and demand in water-scarce regions means that not all water demands from different sectors can be met and that demand from different sectors compete with each other. For example, agriculture is generally the largest water user, consuming over 90 percent of water in some countries. With an emphasis on equity, the needs of the agricultural sector must be balanced with those of other stakeholders. The model code would promote equitable allocation in two crucial ways: by promoting local water governance and by focusing on democratic participation. The model water code research group believes both of these are integral to equitable water use.

Water demands and uses are local. Therefore, promoting sound local governance in water management is essential, especially where water resources are stressed. With this local empowerment, however, must come the realization that there are common problems found in local government. For example, traditional local governance commonly marginalizes women. Because of concerns like this, a model code should also promote democratic participation, for instance through the creation of a broad-based citizen advisory council that represents different groups in society.

Emphasizing sustainable management

Sustainable management is essential in order to protect water resources in water-scarce nations. As argued above, this must involve local decision-making. Without the engagement of local knowledge, decisions may be made that are not suited to an area’s environment. For example, the qanat is an ancient and sustainable technology used in many arid Mediterranean countries. Through a network of tunnels and wells, qanats ensure a fairly consistent source of water in both wet and dry years, and avoid evaporation losses. Unfortunately, in some countries these water supply systems have been badly damaged through neglect or because of other water projects. Attention to local expertise could help avoid situations like this, both preserving the water supply and conserving economic resources.

Further, without local acceptance, both water projects and water laws could fail. A first step towards gaining local acceptance is to ensure that relevant information is available and accessible, mirroring the first pillar of the Aarhus Convention. Disseminating information requires relevant authorities to collect and compile data about the water quality and quantity in their jurisdictions, and to make this information available to the public. It also implies the obligation of the authorities to respond to requests for information. Ideally, technical service providers, who are trained and available to work with local communities and landowners, could disseminate this information. Technical providers can play a vital role in educating the public in such critical matters as water conservation, and protection of the local water resources.

Heavy water use in the tourism sector needs to be balanced against existing uses. Source: Zrim

Most water-scarce areas must balance competing interests. For example, countries drawing significant support from tourism may need to balance the need for new hotels and tourist attractions – and their prospective heavy use of water – against existing water uses. In order to encourage sustainable practices while remaining realistic, the model water code should include a comprehensive water plan requirement. Such a plan would provide a rational context for decision-making regarding any new development schemes.

The model code and privatization

To address water shortage and quality problems, many countries have privatized water utilities. In some countries, such as Chile, privatization has improved the quality of water supplies and expanded distribution. However, other projects have suffered from insufficient capitalization, political unpopularity and long-term unsustainability. These shortcomings, arising from inadequate planning and a lack of transparency, drain states of both money and water. A model code can assist municipalities in considering whether to privatize and in determining the sound legal instruments by which to do so.

Projects often inaccurately forecast consumption or face public resistance. For instance, in Cochabamba, Bolivia, the private operator predicted that both previous consumers and newly connected users would consume water at the same rate. The new users actually consumed far less, and profits plummeted. Likewise, in the Jordanian capital Amman, under Amman’s management contract with the French multinational water company Suez, high tariff rates charged by the operator prompted commercial users to seek alternative sources, which depleted the groundwater supply. The operator also failed to give advance notice of price increases. These oversights led to political opposition and eventual discontinuance of both projects.

A model code could address problems like this by requiring the state to invite local participation in project planning. This involvement could occur as consultation in developing the privatization policy or in the form of public review after the government has devised a plan.

Moreover, as exemplified by privatization in Turkey, conflict between operators (trying increase consumption) and the state (promoting water conservation) can exacerbate scarcity problems. A model code could temper divergence by requiring the state to consider alignment tools like performance penalties and rewards, debt guarantees or profit-sharing agreements. Finally, the code could also guide the parties’ choice of dispute-resolving bodies to enforce these mechanisms.

Where do we go from here?

As the number of countries suffering from water scarcity grows, sound water laws become increasingly vital. Especially at the community level, decision-makers and major users of water will need effective legal tools. A model water code is such a tool. The model water code group at Cornell Law School is continuing its preliminary research, and will begin developing a draft model code for field-testing within a year. After a testing and re-formulation period, the code will be released online.

Water at Cornell University

The model water code project is part of the Water Law Clinic, taught by Professor Keith Porter, at Cornell Law School. The group recently presented at “Water Scarcity and Policy in the Middle East and Mediterranean,” a conference organized by Cornell’s David R. Atkinson Center for a Sustainable Future. The Atkinson Center aims to promote sustainability researchers across Cornell University, a lengthy list that spans 10 colleges and 55 departments. This includes a project, led by Professors Gail Holst-Warhaft and Tammo Steenhuis, on water governance in the Mediterranean and Middle East.

Writers: Diana Biller, Natasha Bhushan, Tamaron Greene and Matt Danforth are students at Cornell Law School and editors at the Cornell Journal of Law and Public Policy and the Cornell International Law Journal. The authors would like to express special thanks to Professor Keith Porter, Professor Gail Holst-Warhaft and Sheila Saia.

This article appeared in the print version of Revolve’s Water Around the Mediterranean special report in association with the Union for the Mediterranean on pages 75-78.