Water Conflicts and Dispute Resolution

Water Conflicts and Dispute Resolution THE LARSON . KING SYMPOSIUM: WATER, CATALYST OF LIFE AND STRIFE: A THREAT TO SECURITY OR A VITAL OPPORTUNITY TO FOSTER COOPERATION?: ARTICLE: INTERNATIONAL JOINT COMMISSION: WATER CONFLICTS AND DISPUTE RESOLUTION SUMMARY: The 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 consultatio n, 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. BACKGROUND Water 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. n2 Approximately 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 al so 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, contribute 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 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 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. n9 Current 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. n12 Disputes 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 disco ntent 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 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 occurred from both government and business interests seeking water resources from the upper Midwest and Canada; one proposal e ven suggested taking water from the Great Lakes by the tankful. n15 A. Water Policy Programs, Problems and Reports Recognition 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 degree 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. n16 Specific 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. n18 In 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. n22 The 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 Conflicts The 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? n23 If one uses the Commons argument, then almost any water supply that is managed by a governmental body for the benefit of the public could 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. n24 Other 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 and 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 Mechanisms Disputes 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. n27 Many of the treaties provide for exchange of data between the signatories of the treaty. This effort provides an opportunity for program administrators and technical 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. n31 II. INTERNATIONAL APPROACHES TO ENVIRONMENTAL DISPUTES A. 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 permanent 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 data 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 Concilia tion Rules and have contributed to improving the possibility of environmental disputes being settled more quickly and with greater participant satisfaction. n36 The 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). n37 Conflicts 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 resolution options or derivatives of these options. B. Dispute Mechanism Techniques The 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 parties 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 settlement. 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 di spute. n40 The 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 presented, 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 methods 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 anticipa tory 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 agreement. 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 fact-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 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 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 a ccept 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 Resolution Water Conflicts and Dispute Resolution THE LARSON . KING SYMPOSIUM: WATER, CATALYST OF LIFE AND STRIFE: A THREAT TO SECURITY OR A VITAL OPPORTUNITY TO FOSTER COOPERATION?: ARTICLE: INTERNATIONAL JOINT COMMISSION: WATER CONFLICTS AND DISPUTE RESOLUTION SUMMARY: The 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 consultatio n, 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. BACKGROUND Water 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. n2 Approximately 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 al so 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, contribute 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 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 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. n9 Current 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. n12 Disputes 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 disco ntent 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 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 occurred from both government and business interests seeking water resources from the upper Midwest and Canada; one proposal e ven suggested taking water from the Great Lakes by the tankful. n15 A. Water Policy Programs, Problems and Reports Recognition 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 degree 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. n16 Specific 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. n18 In 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. n22 The 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 Conflicts The 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? n23 If one uses the Commons argument, then almost any water supply that is managed by a governmental body for the benefit of the public could 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. n24 Other 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 and 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 Mechanisms Disputes 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. n27 Many of the treaties provide for exchange of data between the signatories of the treaty. This effort provides an opportunity for program administrators and technical 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. n31 II. INTERNATIONAL APPROACHES TO ENVIRONMENTAL DISPUTES A. 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 permanent 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 data 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 Concilia tion Rules and have contributed to improving the possibility of environmental disputes being settled more quickly and with greater participant satisfaction. n36 The 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). n37 Conflicts 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 resolution options or derivatives of these options. B. Dispute Mechanism Techniques The 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 parties 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 settlement. 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 di spute. n40 The 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 presented, 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 methods 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 anticipa tory 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 agreement. 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 fact-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 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 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 a ccept 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,

Storm Born Chapter Twenty-Five

â€Å"I know what you're thinking.† I stretched my arms above me, tucking my hands between my head and the pillow. Sunlight poured over me from the giant window but did little to help my troubled mood. I'd been sullen and quiet all morning. â€Å"Not likely.† Dorian reached over to a tray of assorted pastries and sweets that had been sitting by the bed when we awoke. That and the newly built-up fire were only a couple of signs that tidying servants had been up and around in here. Their presence shouldn't have bothered me; everyone had already believed Dorian and I were sleeping together. Yet, knowing others had moved around us while we slept still felt odd. He popped a marzipan-stuffed tartlet into my mouth. I made a surprised sound but ate it anyway. He had excellent cooks. â€Å"Well, then, let me guess anyway. I do so love trying to reason out your thoughts.† He grinned at me, every inch the lighthearted and frivolous man I usually knew. He bore almost no trace of the impassioned lover from last night, the one who'd repeatedly told me in explicit detail exactly what he could do to me if he wanted – and then proved that he could. I rolled to my side, putting my back to him. â€Å"Knock yourself out.† â€Å"All right. You're now realizing you did the unthinkable. You made love to me – one of the shining ones. You crossed over that invisible line, and now the horror and regret of that is eating you up.† â€Å"No.† â€Å"No?† â€Å"No, that's not what I'm thinking.† â€Å"Oh.† I heard him shift again and then felt a cookie balanced delicately on my arm. I snagged it and munched on it, getting crumbs on the sheets while he reconsidered. Lemon sugar. â€Å"Very well. How about this: You're thinking about the kitsune. About Kiyo. You miss him and lament what happened. Being with me makes you feel guilty.† I hadn't been thinking about Kiyo, but mentioning him suddenly brought him to mind. I did miss Kiyo. I missed the easy way we interacted, his solid and steady presence. I missed the way he held me and made me feel safe. â€Å"No.† â€Å"Hmm. Well, then. My perception appears to be off this morning. It has been known to happen once or twice before.† I stared out the window, unsettled emotions turning over and over in me. Finally, I said, â€Å"I'm bothered by†¦how it was last night. How rough it was.† â€Å"Truly? I really don't know you so well. I thought you enjoyed it.† â€Å"I did.† He waited a beat. â€Å"Forgive me, then, but I don't quite grasp your concern.† I rolled back over toward him, and it all spilled out. â€Å"Don't you get it? All this time I've been trying to avoid hordes of gentry and monsters from raping me. And yet†¦that's essentially what happened last night. I let you†¦I let you be aggressive and possessive. And then I liked it. What's that say about me? What's wrong with me?† Dorian's face shifted to that rare and serious concern that sometimes seized it. He reached out and cupped my face with both of his hands. â€Å"Oh, gods, no. Is that what's upset you? Eugenie, Eugenie. That's not rape. Rape is brutal. Rape is done against your will, usually with someone you hate – or at least like a little less than me. What we did last night†¦that was a game. I believe it initially helped you get over a mental stumbling block, but after that†¦there was nothing violent or bad. It was a†¦novel way of approaching sex. You consented. There's nothing wrong with you for liking it.† Maybe he was right, but it still made me feel strange. â€Å"I've just never done anything like that. I've had rough sex before but never anything so†¦kinky.† â€Å"Kinky. Fantastic word. It always takes us awhile to catch up with your world's slang.† â€Å"It makes things weird between us. I mean, weirder than usual.† He ran his hand over my cheek and through my hair. â€Å"Then tell me how to make things right.† â€Å"I don't know.† â€Å"Perhaps this will cheer you up: We're ready to go to Aeson's now.† â€Å"What?† That didn't cheer me up so much as surprise me. Where had this come from? â€Å"We can go whenever you wish.† â€Å"You're giving in because I have morning-after regrets?† â€Å"I'm ‘giving in' because you crossed the point I wanted you to with your magic.† I scoffed and rolled away. â€Å"Bullshit. I can make water drops appear in the air. Somehow I doubt that's the life-or-death difference needed on this mission.† â€Å"The life-or-death factor here is that you can control a fine portion of your magic now. I needed that to happen before I felt comfortable on this venture. I couldn't risk your emotions flaring and creating a storm that might kill us. Now, you may very well still have some sort of magical breakdown, but I believe your current skills will go far to at least minimize the impact.† â€Å"Then what you said before – about it being protection in case I was defenseless†¦Ã¢â‚¬  â€Å"Yes. I'm afraid that was a ruse. I'd hoped the thought might spur you on to try harder.† Typical Dorian. His absurdity made me half-smile. â€Å"You're happier now?† he asked. â€Å"I don't know if happy is the right word, but I will be when the Jasmine thing is over.† â€Å"Excellent. Come here.† He motioned me into his outstretched arm, and for a moment, I expected an advance. Like a Hey, baby, I'll make you happier type thing. I moved over tentatively, and he only put his arms around me. Just that simple. No jokes. No kinkiness. Just a simple embrace between two people, two people close enough to have rattled the headboard last night. I took comfort in it, relaxing into his warmth and security. He wasn't Kiyo, but he felt nice. At last he moved his face away so he could look at me. â€Å"Very well, then. Tell me how you would like this to unfold.† Staging another heist turned out to take a fair bit of planning and didn't actually unfold until later the next day. We assembled all three of my minions in one of Dorian's lounges. They waited patiently for orders, each watching me as their minds undoubtedly stirred with their assorted neuroses. As Volusian had once pointed out, they had little to lose. They couldn't die. When Dorian called in Shaya to join us, I couldn't help an exclamation of surprise. â€Å"Remember the distraction we discussed?† he asked me. I did. Before getting out of bed, we had come up with the tentative outline of a plan. Part of it had included a major distraction near Aeson's home, enough to draw the attention of his guard so we could enter undetected. My spirits had long since verified that the siege tunnel had been blocked off. Shaya, he explained, would be our distraction. She had the power to command small ranges of vegetation. In particular, she could summon and order around trees – something she'd apparently done before to great effect. Dorian's thought was that Shaya would have a small regiment of said trees attack the western side of Aeson's hold. On the eastern side, we knew there was a servants' entrance we could slip into. Normally, that would be too exposed but not if the castle's security was preoccupied elsewhere. I nodded, thinking it was a good plan. Shaya crossed her arms and looked thoroughly displeased. â€Å"You got a problem with it?† â€Å"I don't think it's our place to interfere with Aeson's affairs, nor do I feel this is worth risking my king's life over.† I glanced between her and Dorian uneasily. â€Å"So you won't do it?† â€Å"Of course I will. My king gives a command, and I obey. I am merely expressing my honest opinion first. I would be doing a disservice otherwise.† Dorian touched her cheek, smiling at her stern expression. â€Å"And that is why you are so valued.† â€Å"It's a bad idea,† said Finn suddenly. We all turned to him. â€Å"What do you mean?† I asked. â€Å"What's a few trees? It screams, ‘Hey, look at our obvious distraction.' It'll make them suspicious. You want to really get their attention, send him in.† He inclined his head toward Dorian. â€Å"A little bit of that rock mojo, and they'll think there's an all-out assault going on.† â€Å"We can't. I need him as my backup,† I argued, â€Å"and protection for Jasmine. Shaya can do her thing and get out of there quickly. If I go in without him, then we're in exactly the same situation as before.† â€Å"Except without the army waiting for you,† said Finn. Shaya shook her head, glossy black braids swinging. â€Å"I don't like the idea of my king left alone.† â€Å"He'll be in and out, no problem. And if he has to face off, he can take anything Aeson's people throw at him.† â€Å"Unless it's Aeson himself,† mused Dorian. â€Å"Is he stronger than you?† I asked. â€Å"We're very evenly matched.† â€Å"Huh. That surprises me. I mean, Kiyo walked away alive from a fight with him.† â€Å"King Aeson wasn't using his full power then,† said Nandi. â€Å"Most likely he feared burning down his home.† Seeing my startled look, she continued. â€Å"It would have created a terrible inferno from whence you would not have escaped. Your skin would have melted, only your bones left behind.† â€Å"So you're saying he wouldn't have to worry about that outdoors. He could unleash as much as he liked.† Something struck me, and I turned back to Dorian. â€Å"What about you? Are you limited indoors?† â€Å"Hypothetically, no. Realistically? Well†¦I still have to operate in a way that won't bury us alive.† He smiled, seeing my consternation. â€Å"Don't worry, my dear. I'll still be of use to you.† â€Å"More use outside,† said Finn. â€Å"We won't even need extra backup, not if nobody's inside to find us.† I sighed and rubbed my eyes. I'd walked into Aeson's with a lot less planning last time, and foolish or not, it had been a hell of a lot simpler than this. I turned to the room's darkest corner, which had been silent thus far. â€Å"Volusian?† He straightened up from where he'd slouched in the shadows. â€Å"I will be very surprised if we emerge from this without any sort of confrontation, regardless of who creates the initial distraction. If I must honestly answer what will keep you alive† – he sighed, obviously unhappy about that outcome. I suspected Nandi's horrific description of my death by fire had kindled warm and fuzzy feelings in him – â€Å"then yes, bringing the Oak King affords more protection for you and the girl, mistress.† â€Å"Then it's settled.† Finn pouted and turned his back on us, pacing around sulkily. After that, it simply became a matter of waiting. We wanted to go under cover of darkness. Dorian and Shaya left to pursue household duties, and the spirits flitted off to do whatever it was they did. This left me with a lot of downtime. I paced the castle's grounds, ruminating over the same old things: Kiyo, the upcoming raid, and the prophecy. The appointed time came, and our strike team reassembled for a few last-minute details. Most of it was simply a repetition of what we already knew. The spirits drifted along, but the rest of us set out on horseback. Shaya rode with the physical grace that permeated her normal movements, but I was surprised to see how agilely Dorian rode as well. He seemed so languid and comfort-oriented in his day-to-day affairs that I never thought of him as having athletic abilities, his feats in bed notwithstanding. We crisscrossed the assorted kingdoms. It seemed to take longer than last time, and Volusian affirmed as much for me. â€Å"The land has shifted its layout,† he explained. â€Å"It does that,† said Dorian, seeing the panic on my face. â€Å"It's normal. We're on the right path.† â€Å"Yeah, but will we make it there before sunrise?† â€Å"Certainly.† He smiled too broadly, and I could tell he didn't know for sure. I looked up. Right now we had perfect blackness, lit only by stars. The moon was dark tonight. Persephone's moon. I could feel the tingle of the butterfly on my arm and felt reassured. Before, I'd needed Hecate to escape back to my own world. Here, that wasn't an issue. Staying alive and sending my enemies on to death was the issue now, so I didn't mind the boost to my connection with the Underworld. â€Å"How much farther?† I asked a little while later. I felt like a kid on a road trip but couldn't help the anxiety tickling my brain. I might have imagined it, but I swore the eastern sky now looked deep purple rather than black. â€Å"Not far,† said Shaya, voice calm. Sure enough, we pulled off and secured the horses, going the rest of the way on foot, traveling through trees and undergrowth. I couldn't see anything, but we soon reached some significant point. Shaya split off from us to do her thing. Dorian squeezed her arm before she left, and she made a solemn bow of acknowledgment. I watched her disappear before I turned and joined the others to continue straight ahead. Aeson's fortress finally loomed up before us as we reached the edge of the tree line. It could really be perceived only through its blockage of the stars. Otherwise, it appeared almost as black as the sky beyond. We stopped just before the terrain cleared, staying under cover. Studying the building further, I could make out small black figures moving back and forth in front of the wall. Guards. Presumably there were lookouts on the towers too. â€Å"Now we wait,† I muttered. I was tired of waiting. I wanted action. Almost opposite us, on the other side of the forest, Shaya should have been preparing to summon her tree warriors. She and Dorian swore it would be a noisy affair, so there'd been no need for a secret countdown or anything like that. The castle was too far away for me to make out any identifiable features, but the spirits indicated the spot containing the side door. Minutes dragged by, and I imagined all sorts of horrible fates for Shaya. Oh, God. What if they caught and killed her? She'd come here out of loyalty to Dorian, and no matter what else had happened, I'd come to respect her immensely. I didn't want her to die because of this. Dorian approached my right side and put an arm around me. â€Å"Don't worry. This will be finished before you know it. Ah – there we are.† In the distance, we heard it. Wood crackling and splitting. A low roar. Faint shouts of alarm carried over the air, and the guards in our view took off running toward the noise. We waited until they'd cleared the area. â€Å"Now is our time,† murmured Volusian. â€Å"Go.† We streaked across the open area, toward the doorway. I could hear the noise on the other side. The sound of something breaking. More shouts. Shaya's plan had been to send about a dozen massive trees to beat on the walls over there. What a wake-up call that had to have been. â€Å"W-wait! Hold it!† I suddenly cried. The spirits stopped instantly. Dorian took a moment longer to slow down and gave me an odd glance. â€Å"What's wrong?† I peered around. My senses tingled. I could feel water, lots of it. The way I felt in crowds or at Dorian's. Water in numerous condensed clusters. The water sources were people. Lots of them. We'd been set up. Again. â€Å"Fuck!† They seemed to come out from everywhere, though I knew they all had to have been hiding in the castle's vicinity or else I would have felt them sooner. They came down from the roofs, out the door we'd been staking out, from around the corner. And somehow I knew the ones who ostensibly had run off would return. I heard Dorian yell, â€Å"They won't kill you – not if they don't have to!† Then, the side of the castle exploded in a downpour of huge black rocks, causing those above and still scaling to fall down to death or at least serious injury. Others standing nearby were buried by the fallout. My spirits had standing orders to attack anyone attacking us, and I saw them flare up for battle. As for me, I'd come packing two guns tonight, again courtesy of Lara. Both had steel cartridges, and my pockets held more clips still, plus a few silver ones. I kept what distance I could from the thick of the fray and fired, aiming for heads and faces if I could, but mostly happy if I could bring anyone down at all. Regular range practice paid off, and I hit almost everyone I fixed on. No one ever managed to get too close to me. The spirits I ignored. They couldn't die, and only another shaman or Dorian-caliber magic user could banish them. After his spectacular wall demolition, Dorian had resorted to a more conventional method: a copper sword he'd worn sheathed under his cloak. It glowed red in the darkness, and I realized he could enhance its power since copper came from inside the earth. He didn't fight with brute force, but he moved with speed and skill, surprising me as much as the horse-riding had. I wouldn't have minded another show of that earth power, but all magic took its toll. It would do no good for him to burn himself out yet. Suddenly, I saw one of the guards moving up on him, just out of Dorian's line of sight. I started to cry out a warning, and then a large, four-legged form ran forward, snarling as he threw his weight into the guard. Dorian gave a quick glance of surprise but quickly returned to fighting. I couldn't recover so quickly and could only stare as Kiyo, in what I had jokingly dubbed the â€Å"superfox† form, clawed and ripped at his victim. The man did manage to slice Kiyo's side, making me wince, but the fox seemed unaffected. Shaking my head, knowing I could neither wonder how he'd shown up nor worry about his safety, I returned to my own battles. A few victims later, I had my aim on someone when I sensed another form sneaking up behind me. I turned but wasn't quite fast enough. He grabbed my arm and bent the gun away from him, forcing me to the ground. With my left hand, I managed to drag out the other gun. It was more or less smothered as his body tried to pin mine down, and I had no real target. It didn't matter. I just sort of aimed in an upward direction and fired. He screamed and recoiled enough for me to push off and fire again with more precision. Someone else took advantage of my distraction and grabbed me from behind. I'd stuffed the extra gun back in my pants and now struggled against him with the first gun when suddenly it grew hot in my hands. Burning hot. I yelped and dropped it, staring as it lay sizzling on the ground, glowing faintly orange. I didn't have to hear his voice in my ear to know who held me. â€Å"Eugenie Markham, lovely of you to pay me a visit.† â€Å"I'm going to kill you,† I hissed. â€Å"Yes, yes, you told me that before, and yet, I see it's not really working out. You should have taken me up on my earlier offer.† He barked out a command to a nearby guard who ran up to us. â€Å"Disarm her before she kills anyone else.† With all the confusion, none of my other allies noticed what was happening. I opened my mouth and began chanting the ritual words to bring the spirits. They were currently too far out of range to simply hear me shout. Realizing what I attempted, Aeson threw me onto the ground, using his body weight to hold me while one hand covered my mouth. â€Å"Hurry!† The guard removed my athames and wand. For the extra gun, he wrapped his hand in the folds of his cloak to retrieve the weapon and then hastily tossed it away. â€Å"You're a damned nuisance – and a deadly one,† muttered Aeson. â€Å"Keeping you alive for nine months may be more trouble than it's – ow!† I didn't see what happened to him but heard a thunk above me. â€Å"You used your power to toss one rock at me?† he exclaimed, an almost comic note of incredulity in his voice. â€Å"On the contrary,† I heard Dorian say pleasantly. â€Å"I didn't use magic for that. I just threw it.† Aeson tossed me toward his guard, just as flames rose up from the ground. In the darkness, the bright light hurt my eyes, forcing me to glance away. Heat rolled off that scorching orange wall, instantly heating up my skin. The guard attempted to scramble back and hold me at the same time, doing a half-assed job at both, though he still managed – just barely – to keep me restrained. My gaze stayed on the fire's flickering colors until I suddenly felt the ground shake. Jerking my head up as much as my restraint allowed, I saw a cloud of darkness rise above the flames. It crashed down, like the palm of one's hand, and the fire abruptly went out, extinguished as pounds of dirt slammed it to the ground. Without missing a beat, Dorian gestured to the spot Aeson stood on. I felt shaking again and saw the earth ripple, like a wave of water moved under the surface. It knocked Aeson off-balance, and then a storm of rock shards – much as I'd seen with the nixies – swirled around, taking aim. Still on the ground, Aeson lifted his own hands. Waves of heat blasted away the rocks, scattering them in different directions. Some of them melted, dripping back to the earth in a molten shower. Ashes filled the air, and I could hear Aeson coughing as he stumbled to his feet. The ground trembled again, pushing him back to his knees. He supported himself with one hand and gave a shaking, raspy laugh. â€Å"It didn't have to come to this,† he said. â€Å"If you would have just shared her, she might already be with child.† A shower of rocks spattered Aeson as Dorian strode forward. They weren't razor sharp, but they looked like they hurt. The Alder King winced and shielded his face. â€Å"I don't share,† Dorian said flatly. The earth near Aeson coalesced into ropes of dirt, winding their way around his limbs. Score one for bondage fetishes. â€Å"Too bad. You might have lived had you felt differently.† Aeson suddenly burst up, breaking through the bonds of earth. As he did, fire blasted from all around him, outlining him and then shooting forward. My scream was smothered in my captor's hand as I saw Dorian fly backward. Aeson charged forward, his hands controlling and shaping the flames into a ring around Dorian's crouching form. The walls flared up high and thick, so hot they gleamed blue and white. I wouldn't have thought Dorian could survive that inferno, but Aeson kept talking to him as though he were still alive. â€Å"Too many theatrics, Dorian, and not enough strength left now to free yourself.† I looked around desperately. There weren't many guards left. In the distance, I saw Kiyo nail some guy pretty handily – the man's pain-filled scream affirmed as much – but he was too far to help, just like the spirits. I realized then my guard's hold had slackened; he was apparently transfixed by his master's showdown. Others, just as captivated, stopped and stared. Taking advantage of the guard's lack of attention, I shoved my elbow back into his stomach and attempted to spring free. I didn't really expect to achieve that goal, but it did uncover my mouth. I spoke the summoning words, and Nandi and Volusian appeared. â€Å"Get Aes – † I began, just before the hand slammed on my mouth again. Another guard joined mine to help with the confinement. The spirits shifted from humanoid form to something else, still vaguely anthropomorphic but more like a cloud of energy. They swooped toward Aeson, one shining and blue, the other black and silver. He deflected them with flames while still holding the walls on Dorian. An instant later, I saw a wand in one of his hands. No. He couldn't – He spoke banishing words, and I felt the surge of power in the air as he tore open a hole to the Underworld. The form that was Nandi trembled and then exploded, disappearing in sparkles. She'd found her peace at last – and without another two years of service to me. â€Å"Call the other one off,† snapped Aeson, â€Å"unless you want to lose him too.† The hand on my mouth lifted. I hesitated. I had nothing to lose if Volusian won or lost. In fact, Aeson's request likely indicated he couldn't banish the spirit to the land of death. Gentry rarely had that kind of power anyway, so Aeson probably couldn't do what I had been unable to do. But if he fought Volusian, it was possible he could have enough strength to break my control and enslave him as a minion. That was not an option. Better for the spirit to be destroyed than turned against me. â€Å"Hold, Volusian.† He retreated immediately, coalescing back into his normal shape. Aeson returned to Dorian. The Alder King held up his hand and brought his fingers together in a fist. The burning walls contracted, resembling more of a cocoon than a cylinder now. Through the crackling of flames, I heard Dorian scream. Helplessness choked my heart. Just like with the mud elemental. Just like with the nixies. I had no weapons and no freedom. This was exactly the kind of situation Dorian kept speaking of. The time magic would be handy. I couldn't use it, however. My abilities included only miniscule water manipulation and out-of-control storms and their consequences. Yet, suddenly, I didn't care about the consequences. I wanted to summon a major storm, a storm to devastate this whole area. Maybe it'd kill my friends and me, but things didn't really look good for us anyway. Focusing my mind on that, I tried to recall the angry tempests I'd created before. Only†¦it didn't work. Maybe it was because I'd never consciously done such a thing before. Or maybe it was because I could no longer see storms as a whole. They were pressure and charged particles and – most importantly – water. Dorian had taught me to compartmentalize the elements, and that's all I could do now. I thought about storms, but all my mind did was reach out and touch all the water sources nearby. Damn it. Finding water did no good, not unless I could move a whole lake and douse the fire. I doubted I could command that much water, even if I had a source like that nearby. But I didn't need one that big. I only needed to summon a smaller water source, one my powers could manage. I refocused. My magic reached out, grasping and connecting with the water molecules I wanted. They recognized me, and I called them forward. They resisted a little. There were more of them here than had been in the pitcher. Obey me! I shouted to them. Come to me! I am your mistress. Only a few seconds passed while I struggled for control of the water. Meanwhile, Aeson was still holding his arms up, collapsing the walls slowly in what was probably a sadistic effort to prolong Dorian's pain. Still, I needed the delay as I pushed and pulled the water more fiercely. A funny look crossed Aeson's face just then, and he glanced around, as though trying to find something. Yet, he didn't know what that was. Come to me! I could feel the water breaking free, unable to resist my command. A look of horror twisted Aeson's face. His hands dropped and clutched his head, almost as if he would claw it off. Behind him the flames around Dorian abruptly faded and disappeared, almost as if a lake had dropped onto them after all. But as I'd noted, I hadn't needed a lake. I'd only needed a smaller source. I'd needed Aeson. The water in him was a size I could manage, the source I'd called out to and commanded. After all, the human – or gentry – body is 65 percent water. And a moment later, all of it came to me. The other 35 percent didn't.

Human Trafficking Is A Global Phenomenon - 1054 Words

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