The challenges accruing from the water resources across the world incur from a wide range of supporting factors like increase in population, globalization, industrialization, modernization etc. Earlier such challenges included only the issue of water quantity. But with the changing times, issues of water quality have become a more vital issue which needs to be addressed urgently. The increasing add-on elements to this problem has expanded the purview of these from being, petty issues in Intra-state region of water shortages in to a worse and deplorable situation of Water wars between Riparian States.
This paper deals with the legal perspective of International Water Disputes primarily focusing upon the issue of Farrakka barrage dispute and Pigeon river in the American region. Firstly, the paper begins with giving an insight to the definition of Rivers under International Law and International Water disputes.
Subsequently, the subject of Transboundary rivers has been dealt, alongwith analyzing the two disputes and the hardships that are encountered in the process of resolving these disputes by the authorities. Further, the paper discusses the relationship of Transboundary waters and International Law and emphasizes upon the two United Nations Conventions, one enunciated in 1992 and another in 1997, that have been effective in mitigating these situations to some extent. In the light of the United Nations Convention on the Non-Navigational Uses of International Watercourses, 1997, the ‘equitable principle’ and the ‘no-harm principle’ have discussed in depth and their relevance in coping with the problem. Finally the paper concludes by giving concrete solutions to this steadily growing issue.
Keywords: globalization, Water wars, Transboundary rivers, Riparian States, Farrakka barrage, United Nations Conventions
Rivers form the part and parcel of every individual as they are extremely important for human sustenance. Increasing scarcity of clean freshwater hampers development and weakens human health, as they are the sources of water, sources of energy, and provide a means for trade. There are many rivers which flow through several different countries. Some of them even provide borders between countries. On one hand they would appear to be solely the property of each individual state. Also where a river passes through several states, each state owns that part of the river which runs through its territory, but controversy has centered round the question of the rights such States. The transboundary watercourses link populations of different countries and support the incomes and livelihoods of hundreds of millions of people worldwide. They are vital for economic development, reducing poverty and removing inequalities in the society.
Riparian nations which are those across which, or along which, a river flows and only they have the legal right, apart from an agreement, to use the water of a river. The upper-riparian nations initially base their claims on absolute territorial sovereignty, typically claiming the right to do whatever they choose with the water regardless of its effect on other riparian nations. Downstream Riparian nations are affected due to this. This badly affects the other Riparian States, hampering the economy of those nations. In this paper, few of such disputes have been dealt with and suggestions have been provided for dealing such problems. This paper seeks to examine the various legal issues involved in international water disputes and attempts to provide practical solutions for settling those disputes in a peaceful manner.
INTERNATIONAL WATER DISPUTES
Trans-boundary rivers link the population of the States through which it oases and helps in the overall development of that State. But, the differences between the Riparian states have led to a large number of disputes relating to Trans-boundary Rivers. But, before moving on to the disputes, first we need to know as to what is a river under International Law. Since the focus is mainly on Trans-boundary rivers, subsequently the paper deals with the same.
RIVER UNDER INTERNATIONAL LAW
The word river has been derived from the Latin word ripa meaning “bank”. River as defined by Britannica Encyclopedia is any natural stream of water that flows in a channel with defined banks . The concept of channeled surface flow, however, remains central to the definition. As per Oppenheim, those rivers which run successively through two or more states are termed as Pluri-national rivers. For most part of the legal regime of rivers, creating rights for other Riparians and Non-Riparian states and limiting the exercise of territorial jurisdiction for individual riparians, depends on treaty. The Pluri-national rivers which are navigable from the open sea and this freedom of their navigation is recognized by treaty are termed as International rivers. The term ‘international’ with reference to international rivers is merely a general indication of rivers which geographically and economically affect the territory and interests of two or more states. However, in practice rivers separating or traversing the territories of two or more states are subject to the territorial jurisdiction of riparian states up to the medium filum aquae, usually taken to be the deepest channel of navigable waters.
The US Supreme court in the case of Handley’s Lessee v. Anthony, observed, that “when a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream.” There many kinds of rivers but since this paper focuses on Trans-boundary river systems, the same has been dealt subsequently.
TRANS BOUNDARY RIVERS
In the nineteenth century, international treaties and agreements concerning the development and protection of trans-boundary rivers were limited mainly to navigational issues. Called “waters of international concern,” trans-boundary rivers historically have been seen as navigational channels for thriving market interests, particularly for imperial states like Great Britain, which controlled and relied heavily upon foreign trade with its colonies. In the twentieth century, the scope of international management of Trans-boundary Rivers has evolved substantially in order to accommodate increasing conflicts of demand for trans-boundary flows.
At present ‘Trans-boundary waters’ means any surface or ground waters which mark, cross or are located on boundaries between two or more States; wherever trans-boundary waters flow directly into the sea, these trans-boundary waters end at a straight line across their respective mouths between points on the low-water line of their banks. Theory and practice agree upon the rule that rivers are part of the territory of the riparian State. Several writers on International law, commencing with Grotius, have been of opinion that there is a general right of passage for all states along such international rivers, but this view has never been generally accepted in practice, and is certainly not recognised as a customary principle of International Law. Even writers who told that there is freedom of navigation differ in interpretation of the extent of this right:
- Some writers hold that such right of passage is confined to time of peace only;
- Others assert that only countries through which an international river passes have a right of passage or ‘perfect equality of all riparian States in the user of the whole course of the river’;
- A third group maintains that the freedom of passage is without any limitation, subject only to the right of each state to make necessary and proper regulations in respect to the use of the river within its boundaries.
In principle, clause (b) is a reasonable one, as States located on the upper portion of a river should not be debarred from access to the sea.
In 1997, the United Nations General Assembly adopted the Convention on the Law of the Non-Navigational Uses of International Watercourses, which defined watercourse as a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole, which provided for broad reaching scope, inclusive of watersheds, and established a definitional grounding for interpreting the impacts one riparian state’s(the Parties bordering the same trans-boundary waters) water diversion activities may have on another state within the river basin. In 1958, the UN published the first comprehensive collection of trans-boundary rivers of the world which identified 166 major trans-boundary basins. At present there are 263 river basins which occupy 45.3 percent of the land surface area of the Earth.
As each trans-boundary river has different characteristics and resource management demands, it is important to consider all vectors that either benefit or reduce the optimal use and protection of the overall drainage basin. Earlier such treaties were only bilateral in nature. But now with expansion of its ambit more and more riparian states are being involved making joint management even more difficult to achieve. As more stressors and resource demands are added, international treaties or agreements become increasingly more complex and difficult to establish and maintain.
TRANS-BOUNDARY WATER DISPUTES
An assessment of past water-related conflicts shows that water scarcity, dam construction, water abstraction, and chronic and accidental water pollution by industry, as well as neglect or non-acceptance of existing treaty provisions, often lie at the root of water tensions. A lot of river disputes have taken place in the past century. Despite the complexity of the problems, records show that water disputes can be handled diplomatically. The last 50 years have seen only 37 acute disputes involving violence, compared to 150 treaties that have been signed. Former UN Secretary General Boutros Boutros-Ghali may not have been right when he said in the 1990s that the next war in the Middle East would be about water not politics, but a future war over water is not out of the question. Some of these have been resolved and some are still in the same condition as they were a decade ago. Some of the most important disputes have been discussed below:
Farakka Barrage Dispute:
The Ganga River is shared between India and Bangladesh which is popularly known as ‘Padma’ there. Bangladesh is the lower Riparian state of Ganga river and it faces acute water shortage during dry season due to the numerous dams and irrigation plans present in the Indian economy.
Farakka barrage is the primary source of conflict over the Ganges has, which was originally constructed in 1975 to divert water from the main river in the dry season to flush the silt gathering in the river Hooghly, a distributary of the system that provides navigation for the Calcutta port. But in the process it caused widespread and devastating effects. The Indo-Bangladesh Joint River Commission (JRC) was constituted in 1972 in order to solve the problem of low water availability since the operation of the barrage. It was agreed on 16th May 1974 that the Farakka barrage would not be put into operation before an agreement was reached on sharing the dry season flow of the Ganges between the two countries. Subsequently however Bangladesh, allowed India to use it for over a 10-day period. Even after that period, India commissioned the barrage and continued unilateral diversion of the Ganges flow and throughout the dry season of 1976. Failing to settle the issue on bilateral basis, Bangladesh sought to move the dispute to UN which in the opinion of India would have delayed solution to the issue. On 26 November 1976 the UN General Assembly directed India to sit with Bangladesh urgently to negotiate a fair and expeditious settlement of the problem.
Bangladesh had contended that Ganga is an international river and demanded equitable sharing of its waters. India said that Ganga river is not an ‘international river’ as ninety percent of it passes through it. But still India was ready to accommodate Bangladesh’s requirements to the fullest. India and Bangladesh agreed to discuss the issue on December 6,1976 at Dacca which resulted in giving some good hints of better relations.
After several rounds of discussions, on 5 November 1977 the two countries signed an agreement for sharing the dry season flow available at Farakka for a period of 5 years (1978-82). Subsequently in 1982 and 1985, two Memorandum of Understandings were signed for extending the sharing the flow. But in the absence of a long-term agreement, Bangladesh was unable to undertake any concrete steps for a meaningful and optimal utilisation of the Ganges water .
Finally in December 1996, a 30-year Ganges Water Sharing Treaty was signed between India and Bangladesh in New Delhi. However, it was only for the dry period. Lack of monitoring of the release of water and lack of third party arbitration in case of breach of agreement are major problems faced in the resolving this dispute.
Pigeon River Dispute
Appellant was a corporation organized under and authorized by the laws of Minnesota as a slide and boom company to construct dams and sluiceways and other improvements along the channel on the Minnesota side of the Pigeon river. Respondent or appellee was a Canadian timber dealer, and floats timber cut from Canadian lands down the Arrow river in Canada into the Pigeon river en route to Lake Superior. The appellee drove quantities of pulpwood and railway ties down the Pigeon river, and in so doing made use of appellant’s improvements, but refused to pay tolls on the pulp-woods after that.. The discussion in this case was mainly was of article 2 of the Webster-Ashburton Treaty of August 9, 1842 which talked about ‘the free and absolute use of water communications’ along the borders. The appellants contended that the Pigeon river did not fall within the meaning of the word “water communications” of this Article, while Respondent contended that since Pigeon river it is one of the water communications between Lake Superior and Lake of the Woods as referred to in said treaty, it is very well covered under Art 2 of Webster-Ashburton Treaty.
Simultaneously this case involved another case of Clark v. Pigeon River Improvement Slide & Boom Co wherein with almost similar facts, the dispute involved the construction and application of certain parts of the Webster-Ashburton Treaty between the United States and Great Britain ratified on August 22, 1842, which established the international boundary line and also provided that all water transport shall be ‘free and open’ to the use of citizens of both countries. This was during the time when Canada was a British colony.
The contention raised by the Respondent was that the Pigeon river was not a ‘navigable’ river. They argued that the intention of the treaty makers was not to include Pigeon river because it was not developed at that point of time as compared to the present. It was basically used for transportation of furs and logs. It was not used for transportation of pulp wood, while the appellant contended that the words used by the treaty makers included “all water transportation” whether it was developed or not, to be free and open for all citizens of both the countries. Moreover, they specified twenty- seven rivers in the United States to be not navigable, in which Pigeon river was not included. This clearly showed the fact that they considered it to be a navigable river.
The trial court dismissed upon motion the complaint for the reason that the same did not state that the Pigeon river was a navigable stream. But this judgment and decree was reversed on the appeal.
TRANS- BOUNDARY WATER DISPUTES AND INTERNATIONAL LAW
a) Customary International Law:
Due to the general absence of a neutral enforcement mechanism, international law often has no better method for sanctioning violations than the law of the vendetta. As a result, customary international law by itself has proven unable to solve the problem of managing transboundary water resources.
b) Treaty International Law:
A national or an international framework of laws, treaties, and agreements acceptable to the society is necessary to govern the countries that are at loggerheads due to the trans-boundary waters. Generally, water conflicts are settled through negotiations. On the basis of treaty-practice sometimes broad principles of International rivers have come into existence, but their precise formulation are yet not settled.
Most of these trans-boundary water areas are under any treaty or any kind of agreement between the countries in whose jurisdiction the natural resource is present. Some 3,500 international agreements govern the use of most of the world’s shared waters. The agreement may be watercourse-specific (e.g. The Columbia River Treaty), a boundary agreement (e.g. the 1909 Canada – United States Boundary Waters Treaty) an umbrella agreement regulating all regional waters (e.g. 1992 Helsinki Convention on Trans-boundary Waters), or an instrument for dispute resolution to maintain the “friendly” relations between neighboring states. But the main problem is with the non-adherence of the States to the agreement.
So, far as the injurious use of river waters or the diversion of and interference with the free flow of rivers is concerned, international law has not advanced to the stage of settled rules in either domain.
c) United Nations Conventions:
i) The Convention on the Protection and Use of Trans-boundary and International Lakes, 1992: The Convention on the Protection and Use of Trans-boundary and International Lakes, also known as the Water Convention, is an international environmental agreement and one of five UNECE’s (United Nations Economic Commission of Europe) negotiated environmental treaties. It was open for signature in Helsinki on 17 March 1992. The purpose of this Convention is to improve national attempts and measures for protection and management of trans-boundary surface waters and groundwater. On the international level, Parties are obliged to cooperate and create joint bodies for Parties bordering the same trans-boundary waters. The Convention includes provisions on: monitoring, research, development, consultations, warning and alarm systems, mutual assistance and access as well as exchange of information.It alsoobliges Parties to enter into bilateral or multilateral agreements or other arrangements.In 2003, the Water Convention was amended to allow accession by countries outside the UNECE region.
Some of the UNECE’s water related problems are of water quantity and water quality, high water stress and over exploitation of water resources, increasing droughts and floods, contaminated water resulting in water-related diseases, etc. More than 150 major rivers and 50 large lakes are either shared or are situated along the borders of two or more countries.
There are two protocols to this Convention:
Protocol on Water and Health
This protocol was negotiated in 1999. It is addressing the problems of water related diseases in the UNECE region, where one out of seven people do not have access to safe drinking water and adequate sanitation. Consequently, that brings diseases such as cholera, bacillary dysentery, coli infections, viral hepatitis A and typhoid. Some of the areas of work of the Protocol are: small scale water supplies, water supply and sanitation in extreme weather events, water-related disease surveillance, equitable access to water and sanitation etc.
Protocol on Civil Liability
The Protocol was formally adapted at the Ministerial Conference “Environment for Europe” in Kiev, Ukraine, on 21 May 2003. It was initiated by a first joint special session of the Parties to the Water Convention together with the Parties to the Convention on the Trans-boundary Effects of Industrial Accidents. Its aim was to give individuals affected by the trans-boundary impact of industrial accidents on international watercourses (e.g. fishermen or operators of downstream waterworks) a legal claim for adequate and prompt compensation The financial limits of liability as well as the minimum amount of financial securities have been agreed by all the actors of the negotiation, including the insurance sector, and are therefore realistic and appropriate.
ii) United Nations Convention on the Non-Navigational Uses of International Watercourses, 1997: The United Nations General Assembly approved the United Nations Convention on the Non-Navigational Uses of International Watercourses on May 21, 1997. Some of the important points discussed are:-
1. It discusses about the watercourse agreements. It talks about the rights and obligations of a watercourse state and their ability to enter into ‘watercourse agreements’ and says that the Convention shall not affect in any manner the rights or obligations of such states that are not party to such agreements.
2. It talks about utilization of water resources in an equitable and reasonable manner and participation of the Watercourse states in the use, development, and protection of an international watercourse.
This Convention basically talks about two principles:
Equitable Utilization: The standards of sharing are found in Article 6 of the UN Convention, 1997. But what amounts to an “equitable” share of the waters of an international water basin often is not clear. Some have argued that “equitable” sharing must mean equal sharing. From a layman’s point of view, equal sharing would mean equal division of amount of water according to the different factors like geographical, social, economic etc factors. Thus, even when each interested nation always agrees to the rule of equitable utilization, nations would still dispute what should be the common standard for sharing and the proper application of the agreed standard. The rule of equitable utilization is simply too general and too vague to be applied without the interested nations filling in the details in what remains merely an obligation of fairness. Yet without a legal resolution of disputes over water, the disputes can only lead back to the law of the vendetta.
But there are few problems that have been encountered in most of the cases like the distribution is only according to the quantity of the water and the quality of the water is not taken into account for the distribution of the flow. Also, the relevant data’s are not always available like those relating to the inflow and outflow of river, which makes the situations worse and the decisions have to be delivered based on past facts. A concrete example of this is the Ganges river basin dispute between India and Bangladesh. The Farrakka barrage was built was based on the prior records and the data’s of quantity and quality of Ganges river. Subsequently when the situations changed due to increasing pollution in it, people in Bangladesh had to face acute water shortage problem.
In the case relating to the Jurisdiction of the European Commission of the Danube between Galatz and Braila, the Treaty of Paris in 1856 subjected the Danube to an international regime controlled by the European Commission. In 1919, the Treaty of Versailles confirmed the power of the European Commission over those parts of the Danube that the Commission had controlled prior to World War I. But the Treaty only allowed representatives from Great Britain, France, Italy and Romania to serve on the Commission. In accordance with Article 349 of the Treaty, an international conference met at Paris to draw up the Definitive Statute of the Danube which was signed on July 23rd, 1921. The relevant articles of this Statute are Article 5 & 6.
In the case of Gabcikovo-Nagymaros Project (Hungary v. Slovakia), after the separation of Czechoslovakia into Czech Republic and Slovakia, Slovakia thinking it to be its responsibility to complete the project which was left undone prior to its separation built a dam that dammed 80-90% percent of Danube river under the alternative plan named ‘Variant C’. The matter was referred to International Court of Justice decided in 1997. The Court concluded that Slovakia, by putting Variant C into operation and unilaterally taking control of a shared resource, had violated international law and the 1977 Treaty. The judges concluded that there should be respect for the limits of the treaty and that each and every Watercourse State has a right to an equitable and reasonable share of the resources of an international watercourse ultimately, the Court ordered the parties to “re-establish co-operative administration of what remains of the Project.”
No-Harm Rule: This rule is dealt in the article 7 of the UN Convention, 1997 which talks says that the States should take precaution while using the watercourse and if their action in anyway causes harm to other state then that State is liable to pay compensation.
The International Court of Justice in its ruling on the Danube River Case (Hungary v. Slovakia) on 25th September, 1997 referred twice to the rule of equitable utilization but did not mention the “no-harm rule.” The Court’s failure even to mention the “no-harm” rule despite Hungary’s heavy reliance on the principle in its pleadings confirms that the rule of equitable utilization is primary, and that avoidance of harm is to be considered only in analyzing whether a particular use or pattern of use is equitable.
In the case of the Pulp Mills on the River Uruguay (Argentina v. Uruguay) , Uruguay had authorized the construction of pulp mills on the Uruguay River in 2003. In 2006, Argentina protested against this in the court and claimed that Uruguay had violated treaty provisions which said that before taking actions which could affect river water quality prior notification and consultation was required. The Court initially rejected Argentina’s request for preliminary injunction but finally resented to it on 20th April, 2010 once the people started coming out on roads and forming blockades to prevent the construction of the pulp mill. The Court’s declaration of Uruguay’s breach constituted a sufficient remedy for Argentina’s claim. The no-harm principle was applied here which finally saved the Argentinean people from getting affected.
CONCLUSION AND SUGGESTIONS
These disputes are a never ending process. By the time one dispute gets resolved another one springs up. Even the conventions and laws cannot help if we don’t understand our responsibility. Each International river requires its own individual and different principle to be applied by its co-basin states. So, there is a minimal duty on the riparian states to consider the effect of its activities on Co-riparian states.
Few suggestions that can be helpful in preventing “water wars” are:-
- There should be a more stringent law which prevents the upstream riparian countries from affecting the water resource which would finally cause trouble to the downstream Watercourse states. To get rid of their problems, the upstream Watercourse states should not affect the other riparian states by releasing river water in times of flood to prevent itself from flood or pollute the river basins by the industries prevailing in their country etc and if they do so, compensation should be given to such affected states or the some principle similar to “Polluter pays principle” can be applied.
- Continuous assessment of the river water amount and quality should be done and a report regarding it should be sent on a cycle basis after a fixed time to the UN so that the watercourses are prevented from being polluted. These Trans-boundary water resources are a storehouse of fresh water which if extracted would help in increasing the economy of a country. They represent a vast hidden global capital that requires careful management.
- Competing economic interests connected to the development of international watercourses could best be reconciled under an approach that promoted a balancing of all relevant factors, and not by a rule that protects one State’s pre-existing uses at all costs. The best way to arrive at a compromise in a conflict of uses over freshwater is by agreement. States appear willing to do this.
- A common fund can be made by the International Community so that incase of any dispute in which an affected state is not able to handle its population and give them better living environment, that money can be used. Also, such money can be used for other purposes like settlement of people affected due to such trans-boundary disputes.
Cooperation cannot be achieved by legal tools but it can only be promoted by creating cooperation motives and cooperative solutions that are acceptable to the opponent parties and in the same time sustainable for the environment.
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 The European Commission retains the powers which it possessed before the war. No alteration is made in the rights, prerogatives and privileges which it possesses in virtue of the treaties, conventions, international acts and agreements relative to the Danube and its mouths.
 The authority of the European Commission extends, under the same conditions as before, and without any modification of its existing limits, over the maritime Danube, i.e., from the mouths of the river to the point where the authority of the International Commission commences. The Rumanian delegate on one hand disagreed with the other states’ delegates on another, that the Commission had jurisdiction over the river between Galatz and Braila. Upon finding that the Commission had historically controlled the disputed portion of the river, the Court rejected Romania’s arguments.
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