The United States and International Water Policy

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Ken Conca

The United States and International Water Policy

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Volume 17 Number 3 September 2008 215-237

The United States and International Water Policy

Ken Conca

University of Maryland

This article examines the role of the United States in international institutions and practices for governing water. Water is a critical global challenge of environmental protection and human security. Water is also characteristic of a set of “translocal” environmental issues for which international institution building has emerged along several different fronts: development assistance initiatives, efforts to manage ongoing controversies over water privatization and large dams, the campaign to recognize water as a human right, and a framework convention on cooperation in internationally shared river basins. U.S. engagement across these initiatives reveals several patterns: the fragmented nature of U.S. policies on water, a systematic tilt toward framing water as a market commodity rather than as a human right, the late arrival of U.S. nongovernmental organizations to several important domains of global water politics, and some notable gaps between U.S. policies, at home and abroad, and evolving international concepts of best practice.

Keywords: United States; water; foreign policy; governance; institution building;

development assistance; transboundary rivers; dams; privatization

Introduction: The United States and Global Water Policy Leadership

Is the United States a leader in international water policy? The question may seem odd, as it has been many years since the United States could be considered a consistent international environmental leader. The United States played an important role in several multilateral environmental accords in the 1970s and 1980s, including those on protecting the ozone layer and stopping trade in endangered species. To be sure, American leadership was driven by particular domestic interests rather than by a strategic consensus about the environment in foreign policy (DeSombre, 2000). Today, however, America’s unsigned, unratified, or unimplemented agreements include nearly every important environmental accord of the past 15 years.¹Several explanations for flagging leadership and growing resistance may be posited: the general rightward shift in American politics during this period, the institutionalization of the environmental movement as a lobby focused primarily on defending past gains, and the passive (if support- ive) orientation of American public opinion toward environmental protection.

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Yet assessing leadership in global environmental governance has also grown more complex than merely identifying a country’s position on international treaties and global “legalization” processes. Beginning in the 1970s, the “grand strategy” of global environmentalism focused on creating such instruments. Centered as it was in a larger paradigm of national sovereignty, this approach emphasized the regulation of transboundary pollutant flows and coordinated action to protect the extrasover- eign global commons. Leadership in this context was chiefly a matter of promoting international accords.

More recently, however, a series of “translocal” environmental issues spawned by economic globalization have moved toward the forefront of global environmental challenges. Systems such as forests, watersheds, coastlines, and wetlands are not simply critical ecosystems from a global environmental perspective. They are also the foundation of local livelihoods and cultures and, increasingly, a source of valuable commodities for transnational markets. Framework conventions have proven a limited instrument for reconciling the tensions between these global/ecological, local/sociocultural, and transnational/market meanings.

Water provides an important example of this new wave of environmental challenges. Rather than the traditional liberal internationalist strategy of crafting an issue-specific environmental regulatory regime, we are seeing a more complex and fragmented pattern of institutionalization around water, with many different strands of institution building unfolding simultaneously.²Some of these initiatives, such as the U.N. convention on shared river basins, reflect traditional, state-centric approaches to international regime formation. Other processes of institution building, such as the community of thought and practice that has emerged around the idea of Integrated Water Resource Management (IWRM), reside primarily in expert networks and their ability to penetrate state-based, intergovernmental, and nongovernmental organizations (NGOs). Still other processes, such as the multistakeholder dialogues and contentious politics surrounding large dams and water neoliberalism, are less conventional in form, crystallizing around protest movements and contentious political interaction that rejects some core assumptions of mainstream policy processes rooted in science and diplomacy.

This raises a difficult question: What would it mean for a country’s foreign policy to “lead” on an issue like water, for which international institution building has been so multifaceted and diffuse? How do we assess leadership in the absence of specific, measurable targets such as treaty ratification and compliance? Does it even make sense to use the language of “leaders and laggards” (Haas, Keohane, & Levy, 1993) when paradigmatic controversies and multiple strands of institution building mean that there are several very different starting points from which to lead and directions in which to lead?

In this article, I move beyond a narrow, regime-centered understanding of leadership. Instead, I use a broader conception of leadership, in two specific ways.

First, it examines multiple strands of emergent institutionalization: bilateral aid,

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participation in the water-related activities of international financial institutions, the U.N. Millennium Development Goals (MDGs), governance of shared river basins, the promotion of water as a human right, and ongoing controversies surrounding the impact of large dams. Second, across these domains, leadership is understood to encompass not simply international legal strategies but rather the commitment (or denial) of resources, support for (or against) institution-building processes, the consistency (or inconsistency) of both domestic and foreign policies with emerging international understandings of best practices, and the paradigmatic underpinnings for all of these. In the case of the United States, the picture that emerges is of geopo- litically skewed and paradigmatically lagging practices on water and foreign aid, a commitment to water neoliberalism that is increasingly out of sync with the evolving understanding of water as a human right, fragmentation of the U.S. voice on water in the international arena, laggardly behavior by the U.S. NGO sector, and some notable gaps between domestic policy and international understandings of best practice.

The Global Water Challenge

Water is in many ways a localized issue. Water is highly unevenly distributed, but interbasin transfers are difficult and schemes to move large quantities over great dis- tances are invariably expensive and politically contentious. A central precept of IWRM, which has emerged as the dominant managerial paradigm for water, is that localized geophysical units such as the river basin or aquifer are the fundamental units of water policy, management, and administration.³

Nonetheless, there are important transnational, even global, dimensions to water.

Most obvious is the alarming state of water deprivation among the world’s poor. An esti- mated 1.1 billion people lack reliable access to safe drinking water, while some 2.6 billion lack access to a minimally adequate water-based sanitation system (U.N.

Development Programme [UNDP], 2006). The toll on public health is massive, if difficult to measure precisely. Authoritative estimates run as high as 5 million water-related deaths annually (Gleick, 2004). The World Health Organization estimates that diarrheal diseases alone claim over 2 million lives annually and are the second leading killer of children worldwide, trailing only acute respiratory infection. Water deprivation disproportionately affects the poor and vulnerable and has a strong gender dimension.

Gendered divisions of labor disproportionately put the burden of water provisioning on women, and the time required to fetch water is a major contributing factor to the lower school attendance rates of girls in many countries (UNDP, 2006, p. 47).

The U.N.’s MDGs, agreed upon at the 2000 Millennium Summit, made water for the poor a central aim, embracing the goal of reducing by half the proportion of the world’s population lacking safe drinking water and basic sanitation by 2015. Water is also embedded in other MDG targets, such as improving child health, reducing poverty, and achieving environmental sustainability (UNDP, 2006, pp. 22-24).

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Although persistent rural poverty remains an obstacle, the 2006 MDG progress report indicated that access to safe drinking water had increased from 71% of the world’s people in 1990 to 80% in 2004, meaning that “the world is on track to reach the drinking water target” (United Nations, 2006, p. 19). The sanitation target, however, is unlikely to be met, with several regions including sub-Saharan Africa and South and East Asia lagging substantially behind the rates of progress needed for attainment.

Paired with the challenge of water deprivation is the equally pressing need to reverse the onslaught on the world’s freshwater ecosystems. Freshwater ecosystems are among the most critical for human health and well-being, providing an array of natural resource goods and ecosystem services that include fresh water, biodiversity, flood control, climate regulation, water filtration, recreational opportunities, and cultural benefits. Freshwater ecosystems are also among the world’s most dramatically transformed by human action (Revenga, Brunner, Henninger, Kassem, & Payne, 2000). More than one third of the world’s watersheds have lost at least 75% of for- est cover, thereby accelerating erosion, soil degradation, and flooding. Up to 800,000 dams disrupt the flow of the world’s rivers, altering stream flow, changing the physical and chemical properties of freshwater ecosystems, and inhibiting the movement of water, sediments, nutrients, and organisms. Pollution from inadequate sewage treatment, toxics, and excessive nutrient loading also takes a heavy toll.

It is sometimes suggested that there are difficult tradeoffs involved in protecting freshwater ecosystems while trying to expand water supplies for the world’s poor.

Yet there are important synergies as well: The destruction of resource-based livelihoods that occurs when swamps are drained or rivers dammed often impoverishes local communities, while newly tapped water supplies often feed industrialization, corporate agriculture, or urban thirst, with little benefit for the world’s poor.

A third challenge is allocating supplies across competing uses. The growing thirst of cities and industries challenges agriculture, historically the predominant water user. Few countries have effective, legitimate mechanisms for reconciling these competing demands; most have treated them as separate policy domains, falling under rival bureaucracies and separate allocation mechanisms. In recent years, the idea of marketizing water resources so that they flow to their most valuable uses has been much in vogue. Few countries have made much progress with marketization, however, and it invariably generates intense social conflict. Transnational pressures for neoliberal economic adjustment and the response of border-crossing activist networks have transnationalized these conflicts.

Making each of these challenges more difficult is the problem of global climate change, with its profound (if still poorly understood) ramifications for freshwater availability. According to the Intergovernmental Panel on Climate Change, “the neg- ative impacts of climate change on freshwater systems outweigh its benefits (high confidence)” (Kundzewicz et al., 2007, p. 175). The variability of climate scenarios and the highly varied distribution of water supplies and water use practices make it difficult to generalize about climate effects. But major challenges include changes in

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water availability caused by changing precipitation patterns, particularly in arid and semi-arid areas; the effect of shifting snowmelt patterns on water supplies; saliniza- tion of coastal resources caused by sea-level rise; and ecosystem effects arising from changes in water flow patterns, water temperature, and precipitation intensity. The challenge is also institutional in that climate effects add stress to water supply and management systems that are already undergoing dramatic political and economic transformations in many parts of the world.

Development Assistance for Water: United States Agency for International Development (USAID),

the MDGs, and the World Bank

One key transnational influence on water governance is the foreign aid for water projects provided by bilateral and multilateral donors. In the water aid arena, the past 10 to 15 years have seen the emergence of a growing paradigmatic debate. On one side lies a vision stressing the “gloomy arithmetic” of water (World Water Commission, 2000). In this view, growing populations and growing demand generate a crisis of inadequate supply and require the mobilization of capital to tap new sources, as well as demand management and more efficient allocation mechanisms. On the other side is a perspective stressing the importance of empowering people by strengthening the human right to water. In this view, reflected by the UNDP in its 2006 Human Development Report, “the scarcity at the heart of the global water crisis is rooted in power, poverty and inequality, not in physical availability” (UNDP, 2006, p. 2).

The distinction between these two perspectives is not simply one of supply versus demand but rather of supply and demand management, on one hand, versus empowerment and participation in the decisions that shape supply and demand, on the other. Convergence on a discursive paradigm of “integrated water resources management” has helped to frame this debate but has not brought it to closure. This can be seen in the many different ways that water experts conceive of “participation,”

from one-sided efforts to engage civil society in the state’s water development plans to far more radically democratic notions of empowerment. Thus, although funding is obviously an important dimension of leadership, there is also a paradigmatic dimension: In which of these directions do funding and policy initiatives push?

Proportional to the size of its economy, annual U.S. foreign aid ranks near the bottom among donor countries.⁴Nor has the U.S. historically placed much emphasis on water as a component of aid. Among donors, the United States ranked second to Japan in the total amount of water-related development assistance for the period from 2001 to 2004—but 15th in the proportion of its aid that was water related (less than 25%). In contrast, donors Japan, Germany, Denmark, and Luxembourg each channeled more than 60% of their aid budget into water and sanitation initiatives (UNDP, 2006, p. 69).

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Historically, U.S. water aid has come down squarely on the supply and demand side of the paradigmatic debate. USAID’s own description of the evolution of its water-related activities tracks quite closely the various shifts in mainstream expert thinking on water: emphasis on infrastructure projects in the 1960s; greater attention to drinking water, sanitation, and health in the 1970s; emphasis on pollution control in the 1980s; and a focus on demand management in the 1990s (USAID, n.d.d). In practice, however, a few areas have received most of the funds. As indicated in Table 1, the bulk in recent years has gone to water supply, sanitation, and wastewater management (66% for the 2002 to 2006 period). Water funds also followed the general flow of American strategic priorities. Four leading recipients—Sudan, Afghanistan, Iraq, and the Palestinian Authority—claimed 41% of U.S. water aid in fiscal year 2005 (U.S. Department of State, 2006, pp. 67-71). In 2003, one type of water aid, targeted to one specific location—water supply in the West Bank/Gaza—claimed one third (32.8%) of all U.S. water-related aid (USAID, 2003).

Recent legal and policy commitments reinforce the emphasis on water supply. At the 2002 Johannesburg Summit, the United States committed to $970 million in aid over 3 years for “access to clean water and sanitation services” ($510 million),

“improved watershed management” ($400 million), and “increasing the productivity of water” ($60 million) (USAID, 2003). Such commitments raise the question of additionality—whether new aid will go beyond existing levels or simply repackage earmarked funds—which has been a sticking point in North–South diplomacy (Najam, 2005). Substantial increases in water aid were forthcoming in fiscal years 2003 and 2004. But as can be determined from Table 1, the increment in U.S. water aid during the following 3 years, using 2002 as the baseline, was about $467 million, or less than half of the Johannesburg commitment. And in 2005 and 2006, funds fell below the pre-Johannesburg baseline.

More recently, in 2005, the United States adopted the Senator Paul Simon Water for the Poor Act, which “makes access to safe water and sanitation for developing

Table 1

U.S. Water-Related Development Assistance, Fiscal Years 2002-2006 (Million Dollars)

Type of Aid 2002 2003 2004 2005 2006 Total

Water supply, sanitation, and wastewater 215.3 374.3 585.6 279.5 260.9 1,715.6 management

Watershed management 133.4 109.4 82.5 67.4 65.3 457.9

Water productivity 61.9 115.6 96.0 47.0 29.3 349.9

Disaster preparedness 31.9 20.6 10.0 6.8 0.8 70.1

Total 442.6 619.9 774.1 400.6 356.3 2,593.5

Difference from 2002 baseline — 177.3 331.5 –42.0 –86.3

Source: U.S. Department of State, 2006, Annex B, Table B.1, p. 65.

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countries a specific policy objective of U.S. foreign assistance programs” (U.S.

Department of State, n.d.). Congressional critics have accused the Bush administration of failing to comply with the act’s requirements, of underfunding water aid, and of steering nominal “water” funds to Iraq and Afghanistan (U.S. House of Representatives, 2007).

Turning from funding levels to the paradigmatic direction in which funding initiatives push, we see in U.S. foreign water policy a strong overlay of the neoliberalism that reshaped development aid practices more generally in the 1990s, with its emphasis on privatization, deregulation, trade liberalization, competitiveness, cuts in government spending, and a generally reduced role for the state (Heynen, McCarthy, Prudham, & Robbins, 2007). In Asia, for example, USAID has high- lighted its “Eco Asia” initiative, which seeks a financially sustainable business model for sanitation based on cost recovery through increased user fees. The 2006 State Department report to Congress required under the Water for the Poor Act identified the key reforms for the water sector in Asia as corporatization, performance management contracts and performance incentive frameworks, economic regulation, benchmarking, and private sector participation (U.S. Department of State, 2006, pp. 87-88). Another trend in USAID initiatives that reflects the neoliberal emphasis is the rise of so-called “public-private partnerships.” Among the agency’s strategic priorities for Africa are several such initiatives, including one with the Coca-Cola Company (as Coke has simultaneously come under fire for its water-related practices in India and elsewhere, spurring boycott initiatives in several countries).

Both the reluctance to expand funding and the neoliberal policy tilt can be seen in the U.S. position toward the most important global initiative on water for the poor, the U.N. MDGs. As discussed previously, water and sanitation are prominently fea- tured in the MDG targets. The United States entered several last-minute objections to the agreement, throwing the negotiations into turmoil. Many had to do with the package of U.N. administrative reforms being negotiated at that time, but one key sticking point was the inclusion of the longstanding commitment by the donor countries to provide 0.7% of gross domestic product as aid (a target the United States has never come close to attaining). According to Jeffrey D. Sachs, a chief advisor to then Secretary General Kofi Annan during the MDG process, “the United States came in a few days ago essentially to try to gut this document. Their purpose is clear:

to try to eliminate the momentum behind the MDGs and to wriggle free of the commitments they have made” (Hoge, 2005). The United States also opposed use of the term millennium development goals, alleging that the specific commitments and timetables defined by the Secretary General’s office in 2001 did not reflect the agreement struck by U.N. member states at the Millennium Summit in 2000 (U.S. Mission to the U.N., 2005). Again, the 0.7% aid target was at issue. This objection was dropped in the final compromise but resurrected in 2005 by the new U.S. representative to the U.N., John Bolton.

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The World Bank and Water Neoliberalism

The total amount of foreign aid for water available through USAID programs pales in comparison to World Bank water sector lending, which totaled roughly $1.5 billion for water supply and sanitation in fiscal year 2006. Water-related lending (including not only water supply and sanitation but also hydropower, irrigation, and water resources management) accounted for 16% of World Bank lending for 1993 to 2002 (World Bank, 2004). The United States has 16.39% of the voting shares for the World Bank and 13.39% for the International Development Association (the bank’s facility for subsi- dized loans and grants to particularly poor countries). How it influences World Bank lending is thus one of the most important mechanisms by which the United States can shape terms and conditions of water-related development programs.

Historically, World Bank water sector lending focused on water supply infrastructure: hydropower, irrigation, and municipal supplies. In the 1990s, however, the bank became an aggressive advocate of water neoliberalism—the use of structural adjustment packages and other forms of loan conditionality to promote marketization of water and privatization of water-related services. The bank’s current water sector strategy stresses attracting private investment, enhancing cost recovery, promoting efficient resource allocation, and strengthening property rights in water (World Bank, 2003), all themes of the marketization/privatization approach.

The performance of water privatization initiatives has been hotly debated and, increasingly, called into question. According to the UNDP (2006),

some privatization programs have produced positive results. But the overall record is not encouraging. From Argentina to Bolivia, and from the Philippines to the United States, the conviction that the private sector offers a “magic bullet” for unleashing the equity and efficiency needed to accelerate progress towards water for all has proven to be misplaced. While these past failures of water concessions do not provide evidence that the private sector has no role to play, they do point to the need for greater caution, regulation and a commitment to equity in public-private partnerships. (p. 10)

A report from WaterAid & Tearfund (2003), a British service-delivery NGO (and historically not an aggressive critic of water privatization), reached a similar conclusion in assessing its experiences:

Our research shows that the policy of private sector participation (PSP) does not compre- hensively tackle the underlying causes of water utilities’ failure to serve the poor. In four key areas (sic) capacity building, community participation, finance and institutional reform, major problems persist, making it unlikely that the multinational private sector is going to play any significant role in achieving the Millennium Development Goals. (p. 5) The push for privatization has met with strong resistance from social movement groups, community organizations, labor unions, and human rights advocates. Nor

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has the anticipated enthusiasm from multinational businesses materialized; attracting private firms typically requires guaranteed rates of return, risk protection, and other costly incentives. In response, the World Bank and other privatization advocates have in recent years shifted to a rhetorical focus on “public-private partnerships.” How much has changed in practice remains unclear: a review by the U.S.

NGO Public Citizen found that 56 of 60 World Bank water sector loans for the period 2000 to 2004 contained provisions promoting privatization, while 54 of 60 contained provisions promoting cost recovery.⁵

The United States routinely votes to support World Bank water projects. Of 53 projects considered for the water resources and water supply and sanitation sectors in 2005-2006, the United States voted “no” on three projects and abstained on two others, all for political reasons unrelated to project content. The United States opposed two loans to Iran based on terrorism legislation previously passed by Congress and one for Bosnia and Herzegovina for failure to extradite war criminals.

The two abstentions were on projects cited for failure to meet basic human needs, triggering another legislative mandate.⁶

The Large Dams Controversy and the World Commission on Dams (WCD)

Along with the question of privatization, perhaps the most contentious issue in international water policy has been the role of large dams and water infrastructure projects. Such projects have been staples of national development strategies in countries as diverse as the United States, the Soviet Union, China, Brazil, and India.

They have also come under intense criticism from an increasingly well-linked global network of human rights activists, environmentalists, community groups, and grass- roots development advocates. During the 1990s, these groups deployed an increasingly sophisticated repertoire of protest, simultaneously targeting individual projects, the international financing that supported them, and the knowledge paradigm that legitimized them (Conca, 2006; Keck & Sikkink, 1998; Khagram, 2004).

These pressures undermined the capacity of governments and their international allies to justify, finance, and build dams to the extent that dam proponents were forced to the bargaining table with their critics. The result was the WCD, a multistakeholder exercise that brought together both dam proponents and dam critics in an unusually frank process of discussion and knowledge evaluation (WCD, 2000).

The results of the WCD’s 2-year survey of the world’s experience with large dams stressed the inconsistent performance of dams, the failure to account adequately for environmental impacts, and the lack of voice for affected communities (Conca, 2006). In its wake, activists shifted some of their energies to pressing governments to adopt its recommendations. For donor governments, this means using WCD guidelines as a screen on development assistance and export credit agencies.

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Like most donor countries, the United States has expressed support for the WCD guidelines. The U.S. Overseas Private Investment Corporation, which supports investment and underwrites risk for U.S. firms overseas, has incorporated the WCD’s “core values and strategic priorities” into its screening mechanisms for project support (International Rivers Network, 2005, p. 8). According to the U.S. NGO Environmental Defense, which has been a longtime critic of large dams and pushed for creation of the WCD, OPIC “uses significantly more rigorous standards than those of the World Bank to guide its support for large dams and ensure biodiversity conservation” (Lawrence, 2005). The Export-Import Bank of the United States (n.d.) cites the WCD guidelines as relevant criteria for project screening while hedging about their practicality:

Ex-Im Bank will evaluate hydropower and water resource projects against the relevant host-country and the applicable international guidelines such as those of the World Bank Group. Project participants also are encouraged to address, to the extent practical, relevant principles contained in the Final Report of the World Commission on Dams.

USAID has also embraced the WCD guidelines and has criticized the reluctance of the multilateral development banks (MDBs) to do so fully and explicitly. In a 2001 review of MDB loans that raised environmental concerns, USAID flagged an International Development Association/International Finance Corporation hydropower loan to Uganda for a series of dams. Pointing to the need for better environmental assessment, concerns about the dams’ cumulative effects, and the impact on affected communities, USAID (n.d.a) concluded that

credit is due the [World Bank] for the direct acknowledgement in this context of the need to consider the findings of the World Commission on Dams; however, the bank seems slow to do so in any public or disciplined way, both for this project and in general.

Similarly, on lending by the Interamerican Development Bank (IDB), USAID has suggested that U.S. support for multilateral lending for hydropower projects be con- tingent on consideration of the WCD guidelines:

According to the IDB’s description of this project, Brazil has 10-year plans for dam building that began the late 1990s. It would be most useful for the multilateral development banks and the U.S. agencies to review those plans—and Brazil’s current thoughts on them—in light of the World Commission on Dams report, to guide our consideration of MDB support for them. (USAID, n.d.b)

These positions notwithstanding, the United States has not used its voting power in the multilateral banks to leverage policy changes or to block the most controversial recent dam projects coming before the World Bank. In March 2005, the United States abstained on the controversial Nam Theun 2 Project in Laos, which was approved by the bank’s board of directors. In April 2007, the United States voted in

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favor of a loan for the equally controversial Bujagali hydropower project in Uganda, which also was approved.

Water as a Human Right

Inconsistency between U.S. policy and emerging international consensus is proba- bly greatest on the idea of water as a human right. Proponents of human rights status for water argue that it is critical not only to catalyze government action but also so that citizens may press claims when they lack an adequate quantity or quality of water.

As Gleick (1999) has pointed out, there has long been a basis in international law, covenants, and declarations for recognizing a human right to water—although, historically, that right was embodied in international law primarily as “an implicit part of the right to food, health, human well-being and life” (p. 490). The 1986 Convention on the Rights of the Child was the first international legal instrument to make a human right to water explicit (Calaguas, 1999). More recently, international advocacy networks and social movements have fueled the campaign to recognize water as a human right (including the antidam and antiprivatization movements discussed previously).

A key victory for advocates was achieved in 2002, when the U.N. Committee on Economic, Social and Cultural Rights issued General Comment 15 identifying a human right to water, as well as state obligations to respect, protect, and fulfill that right (United Nations Committee on Economic, Social and Cultural Rights, 2002). Three aspects of General Comment 15 are noteworthy here. First, the finding squarely embraced an idea championed by activists but opposed by the United States—that treating water primarily as an economic good was in tension with its status as a social right. Second, the finding was made in context of the International Covenant on Economic, Social, and Cultural Rights, which the United States has not ratified. Third, in contrast with the U.S.

emphasis on political rights as the key to realizing social welfare, the finding stressed a human right to water as “indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights” (U.N. Committee on Economic, Social and Cultural Rights, 2002, p. 1, para. 1).

Since the release of General Comment 15, the campaign to make water a human right has moved in several directions. At the Fourth World Water Forum (in 2006), a broad coalition of NGOs called on governments to take specific steps to make water rights meaningful, including adoption of a resolution in the U.N. Human Rights Council; establishment of an international monitoring mechanism, such as a U.N.

special rapporteur; and bringing national laws into line with General Comment No. 15 (Heinrich Boll Foundation, n.d.). In the past few years, several European governments have explicitly recognized a human right to water, including Belgium, the Netherlands, and Great Britain. In 2006, a broad coalition of developing countries and European states introduced a resolution for the U.N. Human Rights Council to take up the question (Barlow, 2006; U.N. Human Rights Council, 2006). In March 2008, the council

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adopted a resolution to appoint an independent expert on the “human rights obligations related to access to safe drinking water and sanitation,” to prepare a compendium of best practices and clarify the human rights obligations of states (U.N. Human Rights Council, 2008, p. 3). A campaign has also emerged for a U.N. convention on the right to water (Barlow, 2006; Green Cross International, 2005).

The United States has consistently opposed efforts to codify or formalize a right to water, while arguing that civil and political rights underpin effective access to water.

USAID, for example, identifies “democracy and human rights” as one of its strategic goals. In practice, this means political rights, the rule of law, and democratic institutions. It is interesting that one of the photos on the USAID Web page on democracy and human rights shows children playing under a flowing water tap. “Democratic decentralization and citizen participation encourages local communities to plan and manage their own access to basic services” (USAID, n.d.c). In other words, the path to water rights is not recognition as such but rather through political participation leading to better collective choice and social outcomes. Again, this stands in direct contrast to the U.N. finding discussed previously, which stressed the foundational role of socioeconomic rights as a prerequisite to the realization of other rights.

The United States has worked actively against formal recognition of water as an economic, social, or cultural right. The United States opposed reference to the right to water in a 2005 resolution of the Commission on Human Rights calling on states to “give full effect to economic, social and cultural rights.” In explaining its vote to abstain, the U.S.

representative stressed three concerns: overemphasis on economic goals at the expense of civil and political rights, the danger of creating a restrictive framework that would not allow countries to realize rights by diverse means, and the lack of standing of U.N. com- mittees to issue authoritative legal opinions (United Nations, 2005). The United States has ratified neither the International Covenant on Economic, Social, and Cultural Rights nor the Convention on the Rights of the Child (the first human rights convention to make a right to water explicit). Gleick (2003) reports that U.S. delegation members worked to remove references to water as a human right from conference statements at several recent international water conferences.

In an effort to change American policy, Democratic Congressional Representative Jan Schakowsky introduced the “Water for the World” Resolution in 2005. The bill affirms water as a public trust and human right, rejects the treatment of water as a private commodity, and calls on the U.S. government to reflect those principles in its international economic and development policies. The bill did not receive action by the Republican-controlled 109th Congress (2005-2006) and has not been reintro- duced since the Democratic takeover of Congress.

Internationally Shared River Basins

Another area of emergent institution building involves shared river basins, which create difficult challenges of international cooperation. States that share watersheds

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are linked by complex ecological interdependencies that require cooperation to be addressed effectively. Oftentimes, however, shared basins also create asymmetric upstream/downstream relationships that can make cooperation difficult.

Establishing a set of framework principles and defining best practices for governing shared river basins has been an elusive challenge for the international community. The International Law Commission of the United Nations deliberated for more than two decades before reporting draft articles for a framework convention on international rivers to the General Assembly. These articles formed the basis for the Convention on the Law of the Non-Navigational Uses of International Watercourses (United Nations, 1997), which the General Assembly approved in 1997. However, the convention did not come close to obtaining the required number of ratifications for entry into force.

Table 2 lists the core principles of the Watercourses Convention. Its goal was to provide a framework for negotiating basin-specific agreements, yet the diffusion of these principles to the basin level has been a halting and uneven process (Conca, Wu,

& Mei, 2006). Nevertheless, the convention provides a useful yardstick of emergent trends in international water law: greater emphasis on coordination, information sharing, and conflict resolution; heightened sensitivity to environmental protection and “in-stream” water needs; and greater emphasis on not only water rights of states but also responsibilities—particularly for upstream states—to avoid “significant harm” to their coriparians.

To what extent have these principles been incorporated into U.S. dealings with its riparian neighbors, Canada and Mexico? The Transboundary Freshwater Dispute Database lists 36 U.S. international river accords with Canada for the period 1909 to 1989 and 23 with Mexico from 1889 to 1994 (Transboundary Freshwater Dispute Database, n.d.). Given the large number of agreements, a content analysis of each is beyond the scope of this article. However, Conca et al. (2006) conducted such an analysis for a worldwide set of international river basin accords for the period from 1980 to 2000, including the five most recent U.S. accords in the database, and found the U.N. principles to be sparsely represented in the North American accords (as was the case for several world regions).

In addition to negotiating international agreements, the United States has built cooperative governance and management institutions with its neighbors Mexico and Canada, meaning that treaties are not the only place to look for a commitment to shared river governance. In 1909, the United States and Canada signed the Boundary Waters Treaty creating the International Joint Commission (IJC) as a mechanism to resolve water-related disputes between the two countries. In 1944, the United States and Mexico created the International Boundary Waters Commission (IBWC).

According to Stephen Mumme and Pamela Duncan (1997-1998), the two commissions have, with one important exception (below), dealt with environmental issues on “an ad hoc, noncomprehensive basis.” With regard to the U.S.–Canadian IJC, the authors found that despite earning a reputation as a dispute–resolution model and adapting over time to the rise of new issues such as management of environmental

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quality, the IJC has suffered “from numerous restrictions and the increasing reluctance of the member governments to refer to it for dispute resolution on a number of critical environmental issues” (Mumme & Duncan, 1997-1998, p. 43). For its part, the U.S.–Mexican IBWC “has operated under even narrower authority for environmental protection,” limited by its mandate and historical focus on flood control, hydropower, sanitation, and water storage (Mumme & Duncan, 1997-1998, p. 43).

These shortcomings in the IBWC were a major cause of the push for a new environmental institution, the Commission for Environmental Cooperation (CEC), in the context of the North American Free Trade Agreement. CEC’s mandate encompasses water quality issues but is not specific to water.

The exception to which Mumme and Duncan (1997-1998) refer is U.S.–Canadian cooperation on the Great Lakes. Since the 1970s, the principal vehicle for shared water governance between the two countries has been the Great Lakes Water Quality Agreement of 1972. The purpose of the agreement, renewed in 1978, was “to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem” (U.S. Environmental Protection Agency, n.d.). The IJC is often cited as a model, and the two countries have enjoyed some successes with regard to the 1972 accord’s restoration mandate. In general, however, the two countries have not used the IJC for the sort of cooperative governance envisioned by the U.N. Watercourses Convention. In October 2006, the IJC issued a report calling for a new agreement (IJC, 2006). The proposed reforms include a mandated bina- tional action plan, explicit incorporation of the goal of protection alongside the

Table 2

Water-Governance Principles Incorporated in the 1997 U.N. Watercourses Convention

• Every watercourse state is entitled to participate in negotiations over the entire watercourse and consult on lesser agreements affecting that state (Article 4).

• States must exercise “equitable and reasonable use” of international watercourses within their territo- ries (Article 5).

• States are obligated not to cause “significant harm” to other states sharing the watercourse (Article 7).

• States are obligated to cooperate on the basis of “sovereign equality, territorial integrity, mutual benefit and good faith” (Article 8).

• Watercourse states shall regularly exchange information and data (Article 9).

• States are required to consult with other watercourse states on the effects of any “planned measures”

(Article 11).

• States must give prior notification for any “planned measures which may have a significant adverse effect” on other watercourse states (Article 12).

• Environmental obligations are created to protect and preserve ecosystems, control pollution, prevent the introduction of alien species, and protect the marine environment (Articles 20-23).

• States are obliged to resolve disputes peacefully; the convention endorses arbitration and mediation and identifies procedures for fact-finding commissions (Article 33).

Source: Conca, Wu, & Mei (2006).

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current goals of restoration and maintenance, embrace of an ecosystem approach with watersheds as the base unit, and an IJC-managed biennial stakeholders’ forum.

None of these measures—all of which would be broadly consistent with the U.N.

Watercourses Convention—is in place within the context of the current agreement.

Finally, trends in international watercourse law are of interest not simply with regard to U.S. treaty commitments and international agreements but also for transboundary rivers within the domestic United States. The federal structure of the American system, combined with the large number of rivers that cross state lines in this continent-sized nation, create many challenges of transboundaary policy coordination. Thus, U.S. domestic practices on transboundary waters may be compared with international standards and best practices. As suggested previously, the growing role of cross-national networks linking national bureaucratic, judicial, and legislative actors (Slaughter, 2004) makes domestic practices an important part of international leadership, not simply for the sake of consistency or to avoid charges of hypocrisy but also to provide the raw material of ideas and experience that trav- els through these policy networks.

If we shift the focus from international accords between sovereign units to mechanisms for waters that straddle boundaries within a larger federal system, then the 1992 European Convention on the Protection and Use of Transboundary Watercourses and International Lakes provides a better benchmark of the current state of the art than the U.N. Convention.⁷Several of the European Convention’s provisions push well beyond the U.N. Convention: applying water management principles at the domestic as well as transboundary level; a holistic approach to the hydrologic cycle; a more specific environmental focus on pollution prevention, control, and reduction; the precautionary principle and the polluter-pays principle; and a more specific mandate for basin commissions as joint bodies of coriparian nations (U.N. Economic Commission for Europe, n.d.).

The U.S. political–legal system contains, in theory, multiple mechanisms for the resolution of disputes over transboundary waters shared by states within the United States, including interstate agreements, Supreme Court decisions, and Congressional legislation. According to Clemons (n.d.), the relationship between these mechanisms has been, in practice, quite murky. Congress has used its power to apportion interstate waters only twice—among California, Arizona, and Nevada on the Colorado River in 1928 and between California and Nevada on the Truckee River, Carson River, and Lake Tahoe in 1990 (Clemons, n.d.). Interstate compacts have also been relatively infrequent, with 39 recorded during the period 1922 to 1997.⁸One limit to such accords is that they must clear a multilevel jurisdictional hurdle, gaining Congressional approval as well as satisfying the state interests in question.

According to Clemons (n.d.),

the authority of States to compact with one another comes from the Compact Clause of the Constitution. The Compact Clause does not encompass every agreement among

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states, but only those that may increase the compacting states’ political power at the expense of the national government. Thus, when an interstate agreement sufficiently implicates federal interests, the Compact Clause requires Congressional approval.

Interstate water disputes potentially implicate two federal interests: on navigable water- ways, the federal power to regulate navigation is affected; on non-navigable waters, the exclusive power of the federal government to regulate interstate commerce comes into play. Because interstate water conflicts will invariably affect one or both of these federal interests, Congressional approval is required.

In the many instances in which Congress has not acted and the states could not agree, the U.S. Supreme Court has played a role in adjudicating interstate disputes (while reiterating its reluctance to do so).

In addition to this institutional murkiness, the content of U.S. law for shared watercourses has not kept pace with evolving international best practices. This was not always the case, as the Supreme Court initially pushed interstate water law along a trajectory that anticipated (and inspired) developments in international law. The court’s emphasis on “equality of right” (rather than following a particular rights framework such as riparianism or prior appropriation) reflected the equitable use doctrine that, until recently, enjoyed pride of place in international water law (Clemons, n.d.). However, the court has not moved as aggressively as international water law in tempering the principle of equitable use with the principle of avoiding significant harm. A doctrine of equitable use tends to favor upstream parties, guar- anteeing them an equitable share of water for development purposes. A doctrine of avoiding significant harm is generally more favorable to downstream riparians, in that it starts with a right to avoid harm by the upstream party’s otherwise equitable use. In Colorado v. New Mexico, the court found that a proposed diversion by Colorado (the upstream state) could be offset by more efficient use in New Mexico.

Its emphasis on the responsibility of both states to use the resource wisely and effi- ciently skirts the question of whether an upstream diversion triggers significant harm downstream. In other words, the emphasis in U.S. law has been on equal standing irrespective of a state’s stream position, whereas in international law the momentum behind the significant harm principle is generally seen as creating a stronger position for downstream states than would a strict equitable use framework.

Water Policy in the United States

Clearly, a commitment to water neoliberalism and opposition to recognizing water as a socioeconomic right are key paradigmatic determinants of U.S. foreign policy on water. But a second key characteristic is fragmentation, to the extent that there cannot be said to be a single coherent voice of U.S. foreign water policy. Quite the contrary: Depending on the particular aspect of water policy in question, the lead

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U.S. agency may be the Environmental Protection Agency, State Department, Army Corps of Engineers, USAID, Export-Import Bank, or U.S. representatives to the International Monetary Fund, World Bank, and regional development banks. A recent State Department summary identified 22 separate federal agencies and depart- ments with expertise and engagement in international water issues (U.S. Department of State, 2006, Annex A).

American water policy is also fragmented internationally because the United States lacks a comprehensive water policy or institutional framework at the domestic level. As Gerlak (2006) has suggested, “there is no real national water policy in the United States but rather fragmented, incremental crisis-driven policy. The federal-state relationship is at the heart of this conflict. A struggle between national supremacy and local autonomy pervades water management” (p. 231). Historically, there has never been a national framework law on water of the sort that is increasingly popular in international circles. Instead, the norm has been policy fragmentation, minimal issue linkage, a complex regulatory patchwork, a historical maze of adjudicated water rights, and poor interagency coordination.

There have been periods in U.S. history when the federal government has played a strong role in galvanizing water-related developments—irrigation of the American West in the 19th century, hydropower in the New Deal era, and environmental regulation in the 1970s (Worster, 1985). For the past few decades, however, the trend in U.S. water policy has been decentralization. According to Gerlak (2006),

water policymaking has become highly fragmented, with multiple agencies managing narrow components or constituencies, from river preservation to water quality protection, from hydropower to flood control. There is an increasing recognition of limits of fragmentation and piecemeal approaches to resource management. (p. 246)

This piecemeal approach to water spills over into international engagements.

The idea that there should be a comprehensive U.S. international policy on water issues is relatively new. Water was one of the thematic issues taken up in the seminal Global 2000 Report to the President (Council on Environmental Quality and U.S.

Department of State, 1980) undertaken in the late 1970s by the Carter administration but with no significant follow-through. Recently, proposals have been floated for a U.S.

national water commission to promote policy coordination and integration, and Gleick (2003) has called for such a commission to include an international dimension.

U.S. Water NGOs

Understanding foreign policy on water requires a broader view of not only the channels through which influence is exerted but also the actors populating those channels. Karkkainen (2004) and many other scholars have pointed to the emergence of

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a mode of hybrid problem-solving governance in which sovereign states and nonstate parties actively collaborate, roughly as equal partners, to address certain kinds of highly complex problems that appear to be beyond the capacity of sovereign states alone to solve. (p. 74)

With regard to U.S. international policies on water, an important enabling condition for both the neoliberal hue and the institutional fragmentation is the relative weak- ness of the U.S. NGO sector on international water issues.

Of the various domains sketched in this article, U.S. NGOs have been most active, and for the longest time, on the large dams debate. U.S. organizations were central to the campaign to green the World Bank, in which dams emerged as prime targets. Environmental Defense became involved in the antidams campaign early; a senior staff member later served as a commissioner on the WCD. Berkeley-based International Rivers Network, the leading hub for international antidam protest and activism, has also been an important voice.

U.S.-based NGOs have been less central in other areas of global water politics.

Public Citizen has an active “Water for All” campaign against water privatization.

When an international working group emerged to explore a multistakeholder dia- logue on private sector participation, however, it contained no U.S. NGOs among the leadership group. Nor have U.S. labor unions been among the lead players in the antiprivatization campaign (perhaps because of the limited inroads that privatization has made in restructuring U.S. water utilities). Similarly, although many U.S.

humanitarian relief NGOs are involved with water projects around the world, there has not been a significant presence in global water and poverty circles until recently.

Among the 437 member organizations of the global Freshwater Action Network (FAN), only a dozen are based in the United States. FAN was created in the wake of the Second World Water Forum (in 2000) “to ensure that Southern [civil society organizations] working on water or sanitation issues are strongly represented at international water policy forums [so that] their voices are heard during the increasingly political water debates” (FAN, n.d.a, n.d.b). Among major U.S. environmental NGOs, only the Natural Resources Defense Council, the Nature Conservancy, and the National Wildlife Federation are members. More recently, the MDGs spurred formation of a coalition of U.S. organizations under the banner of the Millennium Water Alliance (MWA). Among its dozen members and affiliates are the humanitarian relief NGOs Care, Catholic Relief Services, and Worldvision. MWA has launched programs on water supply, sanitation, and water education in Kenya and Ethiopia, with funding from the State Department, USAID, Coca Cola, and other private sector and foundation sources.

The weak articulation of U.S. NGOs is part and parcel of the foreign aid picture sketched earlier. The absence of strong NGO voices reduces the push for funding, and limited funding provides no growth pole for NGO activity.

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Conclusion

As suggested at the outset of this article, assessing leadership on global water issues is complex, for several reasons: because of the large number of domains of institution building in the water arena; because leadership on “translocal” issues such as water requires assessment of paradigmatic debates and domestic practices, not simply compliance with a treaty-based regime; and because issue areas of this type involve a wide array of governmental and nongovernmental actors. Given these complications, what can be said about U.S. leadership?

In material terms, the United States is an important donor with regard to the overall volume of water aid it provides but also one that has not prioritized water or ratio- nalized its water aid. Aid flows continue to follow a largely geopolitical imperative, water is not a priority relative to other sectors, commitments to higher funding levels have not been met, and the opportunity to use U.S. influence in the World Bank has been met with relatively passive acceptance of bank practices in the water sphere.

Regarding the “best practices” dimension of leadership, there are many ways in which U.S. domestic water policies lag behind what may be considered best practice in international circles. The United States lacks the sort of national framework law for water that is currently popular in IWRM circles—one that emphasizes water as a national trust and a human right, sets clear priorities among sectoral uses, promotes efficient allocation mechanisms and systematic demand-management strategies, and implements basin-scale administrative systems for water management and governance. There have been only a few experimental steps toward the development of multistakeholder basin management (most notably the Chesapeake Bay Commission).

Allocation of water rights remains enmeshed in an arcane, litigious web of traditional practices. Transboundary disputes weave their way through the court system in the absence of institutionalized dispute–resolution mechanisms. Although substantial progress has been made in delinking water consumption and economic growth, U.S. per capita water use of almost 600 liters per day is more than double that of France, almost triple that of Germany, and almost quadruple that of Britain (UNDP, 2006, p. 1).

Leadership on “translocal” environmental challenges such as water issues also has a paradigmatic dimension. U.S. international water policy for the most part con- tinues to reflect a 1990s paradigm of water neoliberalism, at a time when state-of- the-art thinking in international water circles has placed renewed emphasis on the enduring role of the state, the importance of a strong regulatory framework, and the centrality of recognizing water explicitly as a human right. The unimpressive record of marketization initiatives has undercut U.S. leadership in the direction of marketization, yet U.S. policy has been slow to adjust. It is also clear that the United States has not played a leadership role in the push for water as a human right. On the contrary, to the extent that there are contradictions between treating water as a human

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right and as a market commodity, the strong emphasis in U.S. policy on marketization, efficient allocation, business principles, and cost recovery pushes in the other direction. To be sure, the question of water as a human right versus water as a market commodity has been a tension for some time now. The 1992 Dublin Principles, an important rhetorical frame in global water circles, stressed both the human right and market commodity dimension of water, with little or no guidance as to how to recon- cile the two principles (International Conference on Water and the Environment, 1992). Yet rather than reflecting this dynamic tension, U.S. policy has come down fairly clearly on the market commodity side of this paradigmatic debate.

Given the heterogeneous character of global water institution building, the fragmented U.S. domestic water policy system and the frequent gap between U.S. practices and evolving international conceptions of best practice, it is not surprising that the United States has not been an effective global leader on water. To date, the effort to change this fact has focused on enhancing water aid, and the Senator Paul Simon Water for the Poor Act may yet yield some gains in this regard. The larger and more difficult shift, however, is paradigmatic. Such change is inhibited both by the relative lack of diffusion of international best practices into U.S. water policy and the relative lateness of U.S. NGOs to several key domains of the global water debate.

Notes

1. The United States has not ratified the Convention on Biological Diversity, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the International Treaty on Plant Genetic Resources for Food and Agriculture, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, and the Stockholm Convention on Persistent Organic Pollutants; it has not signed the Cartagena Protocol on Biosafety or the U.N. Convention on the Law of the Sea; and it has withdrawn from the Kyoto Protocol of the U.N. Framework Convention on Climate Change.

2. For a list of emerging institutions on water, see Conca (2006, chap. 5) and Varady, Meehan, Rodda, McGovern, and Iles-Shih (2008).

3. Although IWRM has been defined in many ways, central precepts typically include the need for attention to demand-side management as well as supply considerations; the need for multilevel, multi- sectoral integration of water management systems and practices; the importance of stakeholder participation; and the need for intensified monitoring, knowledge-based management, and water information systems (see Global Water Partnership, n.d.; on the evolution of the concept, see Conca, 2006, chap. 5).

4. Despite a 34% increase in official development assistance in 2005, driven largely by aid to Afghanistan and Iraq, the United States contributed only 0.22% of the gross national income in net development assistance, the third lowest percentage among 22 Organisation for Economic Co-operation and Development (OECD) donors (OECD Assistance Committee, n.d., p. 8).

5. Tabulated from data in Grusky and Fiil-Flynn (2004).

6. For a list of project loans by sector and country, see the searchable database on project support available on the World Bank’s Web site. For information on the voting record of the U.S. Executive Director to the World Bank, see U.S. Department of the Treasury (n.d.).

7. This is not to suggest that Europe should be seen as a federal structure approximating the United States or that the convention represents something akin to domestic law.

8. For a list of these compacts, see Transboundary Freshwater Dispute Database(n.d.).

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