March 31, 2014
South Asian countries face a water crisis caused largely by ineffective management rather than scarcity of fresh water. The crisis has been exacerbated by extreme weather events in the region in the last decade.
On top of this, the legal and institutional response to transboundary water management in South Asia has been skewed, often attributed to hydro-diplomacy that is strongly linked to the geopolitical context characterised by intra-regional power imbalances, mutual hostility and suspicion.
Another issue that has been at the centre of all water related developments in the region is the securitisation of water data which is the manifestation of other security concerns such as environment, food and energy – with India at the centre stage.
A number of treaties and agreements between countries on shared international watercourses are often claimed to reflect biased positions and power imbalances. For example, agreements between India and Nepal are contested on the grounds that they are aimed at giving India access and control over Nepal’s water.
Similarly, Bangladesh holds India – an upper riparian – responsible for many of its water problems due to its control of lean season flow and release of water during monsoons causing floods in Bangladesh. Four bilateral instruments have been signed between India and Bangladesh, including the 1996 Ganga Treaty. However, disputes over the lean season flow from the Farakka barrage on the Ganga in India continues to strain relations between the two countries.
The famous Indus Water Treaty (IWT) between Pakistan and India is also under serious strain because of the dispute over the Kishanganga Hydroelectric Project built by India.
There are also instances where no water cooperation arrangements exist, for example between China and India, despite China’s critical position as the upper riparian. However, anxiety and fears on claiming prior use rights over Brahmaputra waters persist in both countries.
Against this backdrop, the existing lack of transboundary water governance in South Asia has to be revisited in the light of the United Nations Watercourses Convention (UNWC), 1997 coming into force.
The UN International Watercourses Convention
The Convention, which entered into force on August 17 with 35 ratifications, is a Framework Convention, primarily prescribing principles, norms, general and substantive procedures for the non-navigational use of international watercourses.
The Convention is to be applied to all Parties irrespective of their specific geographical location and level of development with respect to other states. It defines a “watercourse” as a system of surface and groundwater constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.
The UNWC is open to the membership of watercourse states and regional economic integration organisations. The South Asian Association for Regional Cooperation (SAARC) may become a party. The Convention does not impact existing water agreements between countries but requires that “Parties may consider harmonising the existing agreements with basic principles of the Convention.”
When the Convention was being voted upon in 1997, China voted against it; India and Pakistan abstained; Nepal and Bangladesh voted in favour, but neither has ratified it.
The Convention also provides for “General Principles” that set forth the basic rules for transboundary water governance, including “equitable and reasonable utilisation” and “obligation not to cause significant harm”. The Convention provides a non-exhaustive list of factors that indicate how the reasonable and equitable utilisation is to be ascertained. There is a general obligation to cooperate and a requirement for an exchange of data and information on the condition of the watercourse. The Convention provides for detailed procedural guidance and a framework for the implementation of its general principles which may be carried out in the context specific to watercourse states and suited to their requirements of cooperation.
The UNWC seeks to emphasise the “protection, preservation and management of transboundary ecosystems.” It imposesan obligation on watercourse states to “prevent, reduce and control the pollution of an international watercourse that may cause significant harm to other watercourse states or to their environment, including harm to human health or safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse.” In order to achieve this goal, countries that sign up to the Convention are required to consult one another and undertake individual and joint management measures.
The UNWC provides detailed guidance to states to deal with emergency situations. The provisions relating to management of international watercourses in the event of armed conflict serve as useful rules as these are indirect procedures that countries may follow when there are serious obstacles to direct contacts between them.
The Convention is categorically prescriptive in its guidance on settlement of disputes and contains detailed arbitration procedures.
UNWC’s role in enhancing water cooperation in South Asia
Due to a very complex geographical and hydrological context, South Asian countries are faced with some of the most difficult issues on transboundary water management and cooperation. There is a long history of water treaties and agreements and a continued dissatisfaction with these treaties between the countries.
The institutions created under these treaties – joint river commissions, for example – have therefore remained by and large defunct. Such is the level of mistrust among South Asian countries that even mutually beneficial mechanisms, proposals and schemes are put on hold after lots of technical and financial resources are invested – for example, the Pancheshwar Project and the Mahakali Treaty, both between Nepal and India.
At times domestic political pressures have defeated attempts to develop water sharing accords. The latest example is the sabotage of India-Bangladesh Teesta Accord by the state government of West Bengal.
The fears over China building dams on the Brahmaputra and attempts to play down those fears have only become more visible in the recent past. The responsible ministries and expert institutions especially in India seem to be directionless, in the absence of any water related agreement (barring data sharing) between India and China.
The primary concerns of governments relate to legal entitlements over transboundary rivers, criterion for allocation and compliance with agreed watercourse regimes. These concerns assume greater significance where treaties are absent or have failed to deliver the expected cooperation and water related development in the shared basins. In the case of South Asia, it is both.
The UN Watercourses Convention provides an effective regime to respond to these concerns. It provides that while legal entitlement over international watercourses can be determined on the basis of existing agreements between countries, future agreements should be in accordance with the principle of equitable and reasonable utilisation. The two avenues are not mutually exclusive but complementary.
Overall, the Convention postulates a balancing of all interests by considering water allocation holistically. Each factor is given the weightage it merits relative to other factors. Further, to be relevant, a factor must aid in the determination of the social and economic needs of the co-basin States. Specific interests such as vital human needs and safeguarding from pollution must be treated within the allocation framework. Existing uses must also be considered in the same vein – as one factor, although an important one – in the overall assessment of what is reasonable and equitable.
In short, the operational mechanism for the allocation framework established in the UN Watercourses Convention, borrowed from the Helsinki Rules of the International Law Association, is flexible enough to permit consideration of all interests relevant to each particular case.
Any resolution of South Asia’s water crisis requires a platform for cooperation and dialogue facilitated by an effective yet flexible framework of internationally accepted and endorsed principles, mechanisms, substantive and procedural rules and guidance to enhance cooperative measures currently in place. UNWC as the embodiment of these elements can create enabling conditions for countries in South Asia to revive and strengthen their existing arrangements or enter into new agreements by creating avenues for balancing interests of all parties.
It therefore deserves reconsideration by all South Asian countries that have so far chosen not to become party to the UNWC.
Shawahiq Siddiqui is an environmental lawyer based in New Delhi. He can be contacted at [email protected]