2. Introduction
2.5 Sovereignty at the triple-level
exclusivity in water management. This characteristic means that states are not the only actors in managing transboundary river basins. Other actors need to play their role as co-designer and co-implementer for environmental issues. Thus, the role of states is not dismissed, but part of their role is transferred to other actors.181
Secondly, the non-hierarchical decision-making is another fundamental characteristic for managing environmental issues in this century. Traditionally, states were the main actor in the decision-making process of river basin management. State leaders would decide at the top of the governmental level, and other organs of states at lower levels would implement these policies.182 However, the role of states is decreasing as the central and only actor to command water management. With the development of integrated river basin management in the last century, the hierarchical role of the state has altered. As river basin management is a social, political, economic, and technological process, the state, alongside other actors, should decide about it collaboratively.183
Thirdly, post-territorial responses is another significant characteristic for issues of transboundary river basin management. Most of the environmental issues in this century are crossing sovereign borders at all events, and they are not bound by sovereign territories. Thus, the solution for these issues should be broader than the borders of sovereign states.184 In the period between the Second World War and the 1980s, states attempted to solve most issues inside their territorial boundaries. The power of sovereign states was centrally designed and planned for dealing with many issues in society. However, this approach is considered an obstacle for addressing many issues and, more specifically, environmental issues.185
rivers, sovereign states are still and will continue to be major actors in solving these environmental challenges with the cooperation of other non-state actors. Sovereign states are still attempting to keep their sovereign power over their natural resources.
The UN International Law Commission Draft Articles on the Law of Transboundary Aquifers is the latest and good example of emphasizing sovereignty over transboundary natural resources, but according to international law. Even though the language of article 3 is designed to convince sovereign states to accept the draft, the document remains as a draft after thirteen years. 186 Thus, the role of sovereignty and understanding sovereign states approaches and perspectives are crucial toward managing transboundary rivers on a different level.
In the absence of a basin agreement between Turkey, Iraq, and Syria over TE-RB management, absolute and limited sovereignty claims are still inevitable. The three states are not members of the UNECE Water Convention. Iraq and Syria are members of the UN Watercourses Convention, but Turkey has not joined it yet. The bilateral agreements and the Memoranda of Understanding (MoU) between the riparian states do not refer to the equitable utilisation and no harm principles.187 Thus, Turkey is imposing sovereignty over the basin. In addition, sovereignty remains a sensitive and controversial topic for the riparian states in the TE-RB. The main reason for that is Turkey, Iraq and Syria were not established naturally. Major superpowers created them after the First World War. Before that time, the whole TE-RB was under the control of the Ottoman Empire. As the only inheritor of the Ottomans, Turkey was created and recognised by the Treaty of Lausanne in 1923.188 The Treaty divided the Tigris and Euphrates among the new Turkish state and two new states, Iraq and Syria.
Imperial powers created Iraq and Syria after the First World War. Both countries are very diverse in terms of ethnicity, religion and culture. However, the two states were governed by political elites that repressed religious and minority groups. Thus, the two counties remained destabilized by internal and external forces.189 In addition to both
186 The United Nations International Law Commission Draft Articles on the Law of Transboundary Aquifers, art 3.
187 Francesco Sindico “National sovereignty versus transboundary water cooperation: can you see international law reflected in the water?” (2021) 115 American Journal of International Law at 181.
188 Veli Yadirgi The political economy of the Kurds of Turkey: from the Ottoman empire to the Turkish republic (Cambridge University Press, Cambridge, 2017) at 5-6.
189 Raymond Hinnebusch “State de-construction in Iraq and Syria” (2016) Politische Vierteljahresschrift at 563-
Iraq and Syria's weak and failed political status, their geopolitical position as downstream countries granted more power to Turkey to impose almost absolute sovereignty over the basin. Thus, it is argued that Turkey is utilising the two rivers’
water for its own benefit without taking other states into account.190 As an upstream country, Turkey has repetitively claimed absolute sovereignty of the two rivers inside the country.191 Thus, there is no cooperation or mechanism for the basin’s management among riparian states.
In contrast, cooperative governance manages transboundary water issues inside the federal system, such as in MDB in Australia. The basin constitutes Murray and Darling rivers with several tributaries. It covers about one million km2 in Australia. MDB has more than 3000 wetlands, and 11 of them are ranked among the significant wetlands of the Ramsar Convention.192 As an independent institution, Murray-Darling Basin Authority (MDBA) has broad powers for managing the basin, for example the MDBA should be informed regarding any proposal or project related to the basin. The MDBA also has the responsibility to consider environmental impact assessments for these projects. Meanwhile, the Australian government has to provide sufficient information related to the basin.193
Thus, all relevant states and territories in Australia agreed to transfer their internal sovereign powers regarding the MDB management to the Commonwealth and its federal institution, the MDBA. However, the Aboriginal people have significant sovereign claims over the MDB as well, because they believe their traditions and customs have been ignored since colonialization.194 The basin was home to Aboriginal people for thousands of years. Any action regarding management of the basin should therefore consider Aboriginal peoples in the decision-making process for
564.
190 Aysegul Kibaroglu and others Water Law and Cooperation in the Euphrates-Tigris Region: A Comparative and Interdisciplinary Approach (Martinus Nijhoff Publishers, 2013) at 119.
191 Waltina Scheumann “Conflicts on the Euphrates: An analysis of water and non-water issues” in Water in the Middle East (Springer, 1998) at 127.
192 GR Marshall, Daniel Connell and Bruce M Taylor “Australia's Murray-Darling Basin” (2013) 1(3-4) International Journal of Water Governance at 236-237.
193 Rosemary Lyster and others Environmental and planning law in New South Wales (Federation Press, 2012) at 315.
194 Jessica K Weir Murray River country: an ecological dialogue with traditional owners (Aboriginal Studies Press, 2009) at 79-80.
management.195 Thus, despite a mechanism for cooperation among Australian states and territories, sovereignty over the basin has not been shared with the traditional owners of the basin. Shared sovereignty for them means their rights, customs and values should be considered in the MDB management.
As well as TE-RB and MDB, the Waikato River has a transboundary nature within New Zealand. In the north of the Waikato region, the Waikato River’s water is transferred to the Auckland region via pipes. One-third of Auckland’s water supply is now provided by the Waikato River.196 From the south of the Waikato Region, the River’s flow is supplemented by the sources of the Whanganui River via the Tongariro diversion. The Tongariro Diversion Scheme, which is located in the Manawatu-Wanganui region, increased the Waikato River’s water flow.197 In addition, the Waikato River catchment has two features that grant it international significance. Firstly, the sources of the Waikato River, which fed on Tongariro National Park, is inscribed to the World Heritage list in 1993.198 Secondly, the Whangamarino wetland is allocated in the lower Waikato is recognised as one site in the Ramsar List of Wetlands of International Importance.199
However, the Waikato River catchment is quite distinctive from TE-RB and MDB in terms of governance and sovereignty. Turkey favours absolute sovereignty in TE-RB and cooperative governance has been adopted in MDB. Still, subsidiarity governance is the main feature in New Zealand and regional councils have the power to manage water resources inside their regions.200 As one of the councils, the WRC is responsible for managing the Waikato River according to national legislation and regional plans.
Before the WRC, the Waikato Valley Authority was responsible for managing the River under the Waikato Valley Authority Act 1956. After enacting the Water and Solid
195 Jessica K Weir “10. Water Planning and Dispossession” (2011) Basin futures at 188.
196 See Watercare Looking after our future: Annual report 2020 (2020).
197 Roger Young, Graeme Smart and Jon Harding “Impacts of hydro-dams, irrigation schemes and river control works” (2004) Freshwaters of New Zealand at 37.2.
198 Scientific and Cultural Organisation (UNESCO) UN Educational “Tongariro National Park” (2021)
<https://whc.unesco.org/en/list/421/>.
199 Department of Conservation “New Zealand wetlands of International Importance” (2021)
<https://www.doc.govt.nz/about-us/international-agreements/ramsar-convention-on-wetlands/nz-wetlands-of- international-importance/>.
200 Resource Management Act 1991, s 30.
Conservation Act 1967 (WSCA), the Authority’s factions were extended to Catchment Board/Regional Water Board.201
The power and functions of regional councils, including WRC, were reaffirmed and expanded under the RMA 1991 to prepare regional plans and rules for managing water resources sustainably.202 However, the role of the WSCA should not be disregarded in two areas. Firstly, “it suspended common law rights and vested access to freshwater in the Crown”.203 This is stipulated in s 21(1) of the WSCA.204 Secondly, it allowed the public and Māori, in particular, to have their voices regarding resource consents and protect their interests in water resource management. As s 24(4) stated:205
Any Council, Board, public authority, or person may...lodge with the Board an objection to the application on the ground that the grant of the application would prejudice its or his interests or the interests of the public generally.
In the interpretation of the above section, the High Court in the Huakina Development Trust V Waikato Valley Authority case asserted that Māori groups can demonstrate their relationship to water.206 The RMA also emphasised that regional councils should recognise the Māori relationship to water.207 However, Māori iwi in the Waikato River were not satisfied until they reached an agreement with the Crow in the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (Settlement Act 2010).208 The Act provides the co-management and co-governance between Māori iwi and the WRC.
Even though integrated management was introduced to water resources in the 1940s, water allocation and quality issues increased in the last few decades, 209 including in the Waikato River. For instance, dam constructions and overusing the upper Waikato River
201 Waikato Regional Council “The work we do” (2021) <https://www.waikatoregion.govt.nz/council/about-us/the- work-we-do/>.
202 Resource Management Act 1991 at s 30.
203 Daya-Winterbottom, above n 58, at 708.
204 Water and Soil Conservation Act 1967 s 21(1).
205 At s 24(4).
206 See Huakina Development Trust v Waikato Valley Authority [1987] 2 188.
207 Resource Management Act 1991 s 6(e).
208 See Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010
209 HC Perkins and PA Memon (eds) Environmental Planning in New Zealand (Dunmore Press, Palmerston North, 2000) at 57-75.
lands for farming led to increasing nitrogen levels into the Waikato River. This increase of nitrogen in the river harms the river’s water quality.210 Studies emphasize that the groundwater of farming lands has a higher volume of nitrogen compared to other lands.
Nitrogen is essential for rivers, but the overload of nitrogen remarkably affects the river’s ecosystem for an extended period.211 A study on the Waikato River found that human and ecological factors have participated in a nutrient loss of the river and its lakes and reservoirs.212 It is suggested that co-management is a suitable method for managing the Waikato River. This approach can achieve major success if indigenous rights are considered in this management.213