November 26, 2014
Water has long been a source of tension in Asia. Ten major rivers originate on the Tibetan plateau in China, supplying water to roughly 1.4 billion people along their banks. But there are no multilateral agreements about how this water should be shared.
Ambitious hydropower plans in China and India have raised objections from other countries. As industrial growth demands more water, and climate change makes supplies erratic, tensions may easily heat up.
The UN Convention on the Law of the Non-Navigational Uses of International Watercourses came into effect on August 17, setting up the first global legal framework for cooperation over water resources between countries. It came into effect 90 days after the 35th country, Vietnam, signed the convention. However, it took 50 years to draft the Convention and gather support from enough member states to implement it.
China voted against the Convention when it was first passed in 1997, as did Turkey and Burundi. India abstained. Given this background, how effective can it be? We asked seven regional experts.
thethirdpole.net: Will the Convention have any significant effect on discussions over the use of international rivers in China and South Asia?
Srinivas Chokkakula – Senior researcher working on transboundary water conflicts at the Centre for Policy Research, New Delhi
South Asian countries and China are not legally bound to the Convention as none of them ratified it. Only party states are bound by the Convention, so arguably the Convention’s entry into force has no effect on non-signatories in the region.
Geopolitical and strategic imperatives do not justify a state becoming a party to the Convention unless other states with trans-boundary water associations also become parties. For instance, India cannot find it prudent to ratify when China votes against.
“India cannot find it prudent to ratify when China votes against.”
However, a clear impact of Convention’s entry into force is that it elevates the international customary law of transboundary water conflicts, creating a new reference frame for transboundary negotiations. Its status as the UN Convention draws attention to the codified principles of international customary law of transboundary water cooperation. It offers legitimate and effective practices for data sharing, negotiation and dispute resolution that could be followed in bilateral or multilateral water sharing arrangements. The Convention can be a basis for transboundary water negotiations; ; this will enable reconsideration of existing arrangements, which tend to be fragmented and asymmetrical.
Yu Xiaogang – environmentalist and director of Green Watershed, a NGO in Yunnan, southwest China
The Convention is based on the principles of cooperation and mutual benefit, friendship between neighbours, development that is not significantly harmful to other watercourse states, and sustainability. It will form a sound basis for good management of international watercourses. As the number of signatories increases and examples of good practice are set, the Convention will be further improved and provide more guidance and binding force.
Michael Kugelman – senior programme associate for South and Southeast Asia at the Woodrow Wilson Centre
It may have a moderate, positive effect in that it will provide a template, or some sort of rough normative model, for effective transboundary water management. Mistrust runs so high among riparian pairings – countries sharing rivers – across South Asia that we shouldn’t expect the Convention to miraculously produce agreement on transboundary river basins. There’s a long way to go.
“We shouldn’t expect the Convention to miraculously produce agreement on transboundary river basins”
Many South Asian states are mired in deep cross-boundary water disputes, and they aren’t ready to commit to the measures proposed by this Convention, especially as these provisions could be harmful to some states. For example, the Convention says states can’t govern their water in ways that harm other states. This means, in effect, that an upstream state building a run of the river dam that nonetheless decreases river flows downstream, could be construed as a violation.
For European countries that have fewer water tensions with their neighbours, this wouldn’t be a problem because they operate in a climate of trust. By contrast, mistrust between Pakistan and India and India and Bangladesh on water suggests these countries simply aren’t ready for a cooperative water sharing regime.
Bushra Nishat – project manager, Bangladesh, Ecosystems for Life: A Bangladesh-India Initiative of the International Union for the Conservation of Nature
It will affect the way South Asia deals with water issues. Even if a country isn’t a signatory, in today’s global community international discourse will always influence understanding within civil society and national and regional research communities. At government level, the influence of this Convention cannot be avoided when countries in South Asia come to the negotiating table. Downstream countries like Bangladesh and Pakistan will refer to it to support their arguments. And of course there will always be pressure from the international community to sign it.
Ramaswamy R. Iyer – former secretary in the Ministry of Water Resources, Government of India, and honorary professor at the Centre for Policy Research, New Delhi
“The Convention is in such general terms that a good deal of negotiation will be necessary in each case”
Even if India had voted for the convention, it would not have a significant effect. The Convention is in such general terms that – under the broad principle of ‘equitable sharing’, which no country can object to – a good deal of negotiation will be necessary in each case. Generally speaking, customary international law requires prior notification of intention to intervene in a river, plus provision of information, consultation with downstream countries, due regard for their concerns and refraining from causing harm or injury to the co-riparian. This was so under the Helsinki rules. It continues to be so under the UN Convention. In fact, these principles underlie the 1960 Indus Waters Treaty between India and Pakistan, which predates the Helsinki Rules.
Samir Saran – senior fellow and vice president at the Observer Research Foundation, New Delhi
The UN framework is too universal. It lacks context to solve South Asia’s water concerns as well as being unrealistic in its objectives and non-enforceable. China in particular has rejected it on the grounds of maintaining its ‘territorial sovereignty’ on decisions pertaining to its own water courses. But the fact that it is non-binding and merely ‘encourages’ states to streamline their efforts towards water cooperation is a positive element that can be used on a case by case basis by the South Asian countries to cater to their specific needs. A case in point is the Nile Basin Initiative that has successfully moulded the principles of ‘reasonable and equitable use’ of the Convention to resolve conflicts and hold dialogues among signatories in the Nile Basin Cooperative Agreement. Without binding future negotiations or past treaties, the Convention can easily be used as blueprint to guide fair and more transparent water dealings in South Asia, while tackling region-specific concerns.
thethirdpole.net: Why haven’t more governments signed up? Should they re-examine their stance?
Michael Kugelman, Woodrow Wilson Centre
In an ideal world, South Asian countries and China would change stance and support the Convention. As we’ve seen from the relatively few successful transboundary water agreements in the region – such as the Indus Waters Treaty – effective water governance mechanisms can prevent conflict over water, and can help ensure some semblance of water security. In reality though, we shouldn’t expect these countries to change their positions anytime soon. There is so much mistrust, particularly among riparian pairings – such as Pakistan/India, India/Bangladesh, and India/China. It’s naive to assume these countries would trust each other enough to sign on to a Convention that calls for considerable cooperation and transparency on water management.
Chen Huiping – International Waters Law Research group, Xiamen University School of Law
China voted against the Convention for several reasons. One is it fails to consider the interests of upstream nations. The list of factors to be considered when determining reasonable use is incomplete and the duty to not cause significant harm means upstream states bear a greater responsibility. This is why most ratifying nations are downstream, or have no international watercourses. Second, the Convention requires nations to consult and negotiate with other nations on ‘planned measures’, which may damage national sovereignty. Third, the mechanisms for settlement of disputes include giving a fact-finding commission access to the respective territory. This too may damage national sovereignty and breaches China’s long-held principle that third-parties should not intervene in disputes.
“The Convention fails to consider the interests of upstream nations”
Yu Xiaogang – Green Watershed
In my personal view, for about a decade China has been developing hydropower on international watercourses. The Convention would limit that currently unfettered process. China’s use of international watercourses is mainly for hydropower, which adds significant value, while the Convention stresses balancing different types of use. In cases of conflict between different types of use, it requires that the needs of those whose lives rely on the river be given priority. That doesn’t match up with China’s concept of market competition.
Not accepting the treaty isn’t in line with our international image as the world’s second largest economy. We lose the moral high ground. It is unrealistic to think that not signing means we won’t be bound by the Convention and international law – in the end we won’t be able to avoid our responsibilities. Voluntarily signing it would improve relations with our neighbours and bring opportunities for cooperation in other fields. And as a signatory we can guide revision of the Convention. It gives us room for manoeuvre when negotiating agreements under the Convention, while not breaching its principles.
Srinivas Chokkakula, Centre for Policy Research
While geostrategic imperatives drive a state’s decision to ratify the Convention, there is little hope that South Asian nations and China will re-examine their stance in the near future. Some specific regional and contextual features resist any change in their attitudes towards the Convention.
The uneven geographies of power and development among nations in the region play a role. Powerful nations like China and India will not prefer to let go of their strategic advantage. Second, transboundary water negotiations in the region remain focused on issues related to development, augmentation and allocation. Pollution control and scarcity management concerns are not yet dominant. These issues tend to draw greater collective action, as seen with the Rhine or the Danube. China and India are in this transitional phase with the respective governments taking up initiatives for cleaning up their major rivers. These issues will eventually force them to think about sharing burdens and obligations, along with development interests. The nations may rethink their stance then.
The Convention also presumes certain levels of economic integration that has not yet happened in the South Asia-China region. This is evident from the absence of any effective platforms or institutions to facilitate transboundary dialogues. In Europe, greater regional integration and related organisational structures such as the European Union enabled transboundary water cooperation. South Asian nations and China will be compelled to re-examine their positions once such integration takes place.
Rafay Alam – environment lawyer and teacher at the Lahore University of Management Sciences, Pakistan
One may think Pakistan’s reason for not signing the Convention is because its principles could be in conflict with the provisions of the 1960 Indus Waters Treaty (IWT) between India and Pakistan. However, the Convention states that it “shall not affect the rights or obligations of watercourse states” arising from existing agreements. In other words, the IWT would not be affected unless India and Pakistan decide to “harmonise” the treaty with the principles of the Convention.
The IWT is essentially a legal agreement over the surface waters of six tributaries of the Indus River, which details the terms and conditions under which India can construct hydropower projects on the western rivers. The Convention, on the other hand, represents an advance in thinking on international watercourses since 1960 and applies principles of sustainability and equity to the management of international watercourse that are not considered by water policy makers and stakeholders in Pakistan.
Meanwhile, there is simply not enough reliable data on the Kabul River (which flows through Pakistan and Afghanistan) to aid the two countries in developing a management regime. Pakistan and Afghanistan may broadly agree to the principles of the Convention, but the acrimonious political relationship between these two countries make real cooperation only a dream.
Shafqat Kakakhel – retired Pakistani diplomat and former senior UN official
“Pakistan has reservations about the inclusion of groundwater in the definition of a watercourse”
Pakistan’s reluctance to accede to the Convention is due to its reservations about the inclusion of groundwater in the definition of a watercourse, owing to practical difficulties in determining the geographic range of aquifers linked to rivers.
Pakistan is also displeased with the non-binding nature of the dispute settlement procedure, which compares badly to the binding mechanism enshrined in the Indus Waters Treaty.
Rather than saying ‘No’ to the Convention, Pakistan and developing countries should actively participate in ongoing discussions on further strengthening international water law.
Interviews conducted by Zofeen Ebrahim, Joydeep Gupta, Liu Qin and Ramesh Bhushal.