International Watercourses Law for the 21st Century

The Case of the River Ganges Basin

Surya P.Subedi

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351926478
• Edition: 1
• Topic: Law
• Subtopic: Maritime Law
• Index: Law

This edited volume presents a comprehensive and comparative view of the law of international watercourses with special reference to the issues facing the Ganges River basin. It provides an analysis of the development of international waterways law and outlines the essentials of the UN Convention on non-navigational uses of international watercourses. Focusing on relations between the three riparian states of the River Ganges and the potential for cooperation, the volume also examines the domestic legal regimes of the area and the political dimension to the issues of sharing the waters of the river. The work presents a comparative picture with an analysis of developments in the Rhine and Mekong basins, comparing developments in the legal regimes of these areas with the experience of South Asia. Presenting an up-to-date analysis of the current law and pointing the direction for future developments, this collection will be a valuable resource for academics, researchers and policy makers working in this area.

PART I:

INTERNATIONAL PERSPECTIVE

Chapter 1

Regulation of Shared Water Resources in International Law: The Challenge of Balancing Competing Demands

Surya P. Subedi

1.1 Introduction

Water is essential for the survival of not only human beings but also all forms of life on our planet. Owing to a number of dramatic man-made and natural changes taking place in our planet water-related issues have come to occupy a place high on international agenda in recent years. A report published by the World Bank at the end of the last century, the twentieth century, stated that ‘many of the wars of this century were about oil, but wars of the next century [i.e., the present one] will be over water’.¹ This was echoed in a report published by the UN on the state of the freshwater resources of the world.² There was a worldwide attempt to highlight the water problem in the run-up to a global ministerial conference on water held in The Hague in March 2000 and in the subsequent World Water Forums. A quick scan of certain leading newspapers reflects the anxiety about the looming water crisis of the world. ‘World is running out of water’, proclaimed The Independent on its front page not long ago,³ ‘the water bomb’ was the headline of a report published in The Guardian,⁴ and ‘UN appeals for action to avert wars over water’ was the headline of a report in The Times.⁵ The problem of fresh-water is becoming more acute in various parts of the world⁶ and is likely to pose a threat to international peace and security in certain areas of the world such as the Middle East, South Asia and Northern Africa. Rivers are the main source of freshwater and there are some 260 rivers in the world that are shared by two or more countries. If there is going to be a conflict about freshwater it is likely to be about the sharing of the waters of international rivers.

Many of the rivers around the globe have become unusable as sources and some others could become liabilities rather than lifesavers if no action is taken. According to the World Water Commission, ‘more than one-half of the world’s major rivers are being seriously depleted and polluted, degrading and poisoning the surrounding eco-systems, thus threatening the health and livelihood of people who depend upon them for irrigation, drinking and industrial water’. The Commission adds, ‘Many of the rivers are being depleted because global demand for water is rising sharply. The problem will be further aggravated by having to meet the needs for food, drinking water, and water for economic development of the additional two billion people on Earth by 2025’.⁷ In the opinion of the Commission, global water shortages will become so catastrophic over the next 25 years that two in three people on the planet will face regular depletion of water supplies.⁸ In this context this chapter⁹ aims to examine the attempts made through international law to address this problem since the primary function of international law is to manage conflicts and above all, to prevent conflicts.

1.2 Development of International Watercourses Law

International law-making in the area of sharing, utilising, managing and developing the waters of international watercourses between riparian States reached a new height in 1997 with the adoption by the UN General Assembly of a Convention on the Law of the Non-Navigational Uses of International Watercourses.¹⁰ There was little international law on international watercourses until the 1950s. There were a few declarations specific to a geographical region or resolutions of non-governmental organisations, but they did not achieve international application.¹¹ States used to invoke different principles of international law to justify their claims over the waters of international rivers. It was in 1895 that the U.S. Attorney General, Harmon, relied on the doctrine of absolute sovereignty in support of the U.S. position in relation to a water dispute with Mexico.¹² However, if an upper riparian State invokes the doctrine of absolute sovereignty to justify the use or diversion of more than its fair share of the waters of an international river to the detriment of a lower riparian State, the latter can also invoke the doctrine of territorial integrity to demand the supply of a fair share of the water of the river to meet its existing and potential use.¹³

The conflict between these two doctrines gave rise to the application of the principle of equitable utilisation in apportioning the water resources of an international river between the riparian States. It is this principle that constitutes the cornerstone of the current law on international watercourses.¹⁴ As can be seen from various international water law cases decided by various national and international courts and tribunals prior to the 1950s, judicial opinion favoured the application of this principle to either the principle of absolute and exclusive sovereignty or the principle of territorial integrity in disputes between States.¹⁵ The development of international law in other areas of the environment has had a profound effect on this area of law and hence we now also have the principle of sustainable development and utilisation of the waters of international watercourses.¹⁶ Added to this are the principles concerning the prevention of the pollution of water, and intergenerational equity, etc.¹⁷ These latest developments become clear if one looks at the recent judgement of the ICJ on the Gabcikovo/Nagymaros Case between Slovakia and Hungary and various individual opinions of the judges appended to it.¹⁸

The attempts at codification and progressive development of international watercourses law began as early as 1910¹⁹ within the International Law Institute (ILI) and resulted in the adoption of a declaration in 1911.²⁰ When the ILI returned to the subject in 1956, its work resulted in the adoption of a resolution of historic importance – the Salzburg Declaration in 1961.²¹ The work of the ILI was further enhanced by the International Law Association (ILA), which resulted in the adoption of the famous Helsinki Rules in 1966.²² The work of these two professional bodies of international lawyers was advanced by the UN General Assembly in 1970 when it recommended that the International Law Commission (ILC) take up the study of the law on the non-navigational uses of international watercourses.²³ Accordingly, the ILC began its work on this subject in 1974.

After numerous rounds of deliberations and the production of several reports by the Special Rapporteurs,²⁴ the ILC completed its work on the subject in 1994 when it adopted the Draft Articles on the law.²⁵ When the report of the ILC containing the Draft Articles was presented to the UN General Assembly, it decided upon the recommendation of its Sixth (Legal) Committee, to convene a Working Group of the Whole to elaborate a framework Convention on the subject matter on the basis of the ILC draft articles.²⁶ Ultimately, upon the recommendation of the Working Group the General Assembly adopted the UN Convention on 21 May 1997.

Thus, the 1997 UN Convention has been viewed, as the result of international efforts of the last four decades, as both the codification and progressive development of the law. Since we now have an international treaty designed to govern the activities of States concerning the utilisation of international watercourses, it is proposed to examine how influential and effective the principles embodied in the UN Convention have been, or are likely to be, in shaping and resolving the existing and potential problems and issues surrounding the sharing, managing, utilising and development of water resources of major international river basins around the world.

1.3 Regulation of Competing Demands for Water Under the 1997 UN Convention

Although the 1997 UN Convention is designed as a framework convention to prescribe basic principles governing the utilisation of international watercourses between the watercourses States, it also contains significant provisions designed to protect the watercourse from pollution and other harmful activities, the preservation of water and the protection of the marine and other aquatic life of the watercourse. The Convention provides in Article 5 for equitable and reasonable utilisation of the waters of an international watercourse between the watercourse States. It also requires the watercourse States to develop the watercourse in order to attain optimal and sustainable utilisation thereof and therefrom. In doing so, they are required to ensure that there is adequate protection of the watercourse.

When agreeing on the utilisation of the watercourses the watercourse States should take into account the non-exhaustive factors outlined in Article 6 of the Convention. There is also an obligation on the part of a watercourse State not to cause significant harm to other watercourse States in utilising an international watercourse in its territory. The Convention imposes an obligation on a watercourse State to co-operate with other watercourse States on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilisation and adequate protection of an international watercourse. It also imposes a duty on watercourse States to protect and preserve the ecosystems and marine environment of the international watercourse, and to prevent, reduce and control pollution of the watercourse.

However, the 1997 Convention states, at the outset, that, provisions of the Convention will ‘not affect the rights or obligations of a watercourse State arising from agreements in force for it’. Thus, whatever progress we have made with regard to the development of international norms for the utilisation of international watercourses, the law applicable to most major international watercourses is the law based on bilateral or multilateral agreements between the watercourse States concerned. This state of affairs has a number of consequences. For instance, even when the provisions of a bilateral or multilateral agreement are not consistent with the principle of equitable and reasonable utilisation enunciated in the 1997 Convention, that situation would continue and an aggrieved State would continue to suffer.

States make use of the waters of any given river for a variety of purposes. The main types of uses are: (i) uses for domestic and sanitary purposes; (ii) uses for navigation; (iii) uses for power generation; and (iv) uses for irrigation purposes. Indeed, Article VI of the 1966 Helsinki Rules on the Uses of the Waters of International Rivers states that ‘A use or category of uses is not entitled to any inherent preference over any other use or category of uses’.²⁷ A similar provision can be found in Article 10(1) of the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses:

1. In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses.

2. In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to Articles 5 to 7, with special regard being given to the requirements of vital human needs.²⁸

The reference to Articles 5 to 7 is to the principle of equitable and reasonable utilisation (Article 5), the factors relevant to equitable and reasonable utilisation (Article 6) and the obligation not to cause significant harm (Article 7). In the Statement of Understanding Pertaining to Certain Articles of the Convention issued by the Chairman of Working Group of the Whole some clarification was offered to the term ‘vital human needs’: ‘In determining “vital human needs”, special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation.’²⁹ Having said that international watercourses law provides for no clear hierarchy between different uses of water of an international watercourse, the watercourse States will have to abide by the provisions of existing agreements with regard to the terms and modalities of sharing the waters of shared international watercourses.

However, there are a number of areas around the world where the existing bilateral or multilateral agreements have not been able to provide satisfactory solutions to the problems faced by the watercourse States of the region. Those States, which feel aggrieved, have challenged the validity of many of such existing bilateral and multilateral treaties. The whole idea behind the making of new laws is to change the existing situation. However, the new law on international watercourses adopted in 1997 is not likely to change the existing situation to any great extent. Although, as demonstrated in the Gabcikovo/Nagymaros Case, international courts and tribunals would be inclined to give effect to the principles of the UN Convention by virtue of their customary law character, the impact of the Convention on non-parties and on those agreements concluded before the entry into force of the Convention is likely to be limited.

Consequently, the need is to look at the international leg...