Document Type

Article

Publication Date

2011

Abstract

Colorado River systems-both ecological and legal-are facing a coming crisis. The river snakes its way from the Rocky Mountain crest to the Gulf of California, draining 245,000 square miles encompassing parts of seven of the United States ("U.S.") and two Mexican states. The river and its tributaries provide drinking water for growing population of thirty million in an even larger area because some of its water is diverted to serve out-of-basin demands in both the U.S. and Mexico. Aside from bringing life-sustaining water to people for personal use, it provides irrigation water for some of the most valuable agricultural lands in the world. Dams on the river system generate enough power to supply the partial needs of some nine to twelve million people. Quite simply, the Colorado River is the lifeline of the region, both literally and economically.

It is increasingly clear that the Colorado River is not likely to sustainably provide enough water to satisfy all of the uses demanded of it under the legal regime currently allocating its water. Already, its natural systems have been severely degraded by the manipulation of water by an extensive network of dams and diversions. Research in recent years has demonstrated that the river historically has produced considerably less water than is presently allocated under the "Law of the River," including, most notably, the Colorado River Compact of 1922 and the 1944 treaty between the U.S. and Mexico. Wellfounded predictions of the impacts of climate change on the Colorado River basin draw an even gloomier picture. The predictions suggest that average flows on the river will continue to decline even as droughts become more frequent, and that declines in runoff will result in amplified reduction of water stored in dams on the system. At the same time, a growing population will likely demand more water from the over allocated system. All this leads to the inescapable conclusion that the Colorado River's water budget is broken.

The purpose of this paper is to consider the allocation of water in the Colorado River basin from a human rights perspective and to assess the human rights implications of the most significant fault lines in the coming crisis. Just as the basin-wide conditions on the Colorado River are evolving and the Law of the River is evolving in reaction, so is the notion of a human right to water in international human rights law. This paper attempts to take stock of where these two issues might intersect. To do this, Part I will provide a summary overview of the Law of the River, a complex and evolving set of legal rules derived from interstate compacts, Supreme Court decrees, administrative decisions, and other sources. This overview will show that a legal system that was based on overly optimistic understandings about the availability of water continues to bend, and may eventually break, as climate change lays bare the mistaken assumptions of its foundation. Part II will then identify four fissures already roiling the Law of the River and discuss the issues they present relating to the human right to water.

Publication Citation

48 Willamette L. Rev. 117 (2011).

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