Development and Codification of International Watercourses Law

102/International Watercourses Law and Its Application in South AsiaDevelopment and Codification of International Watercourses Law/103

Chapter- Two

Development and Codification of International Watercourses Law

2.1 Introduction

The availability of and demand for water was not a problem until the 1950s except in a few countries with arid and semi-arid climates.[1] Thus, there were very few conflicts and disputes in this area except in the western part of the United States and some parts of the Middle East.[2] In fact, the development of IWL is a recent phenomenon in international relations. As a consequence of the increase in various competing uses, giving rise to increasing disputes and conflicts, the necessity for laws to resolve the issues was direly felt. In this context, various state practices, concepts and rules emerged. However, the development and codification of such rules were undertaken on a piece-meal basis, not based on a holistic framework or approach.

As the human powers to control, divert and use the mighty rivers through scientific innovation increased, competing as well as complementary uses, such as, recreation, irrigation, hydropower, industrial, and drinking water have put even greater strains on finite resources. As a result, hundred of dams and reservoirs have been constructed and water delivered far distances to where it was needed; that is to say, technology helped undertake mammoth water projects. Such activities, not surprisingly, led to conflict amongst communities and nations. This was exacerbated in the areas where water was already scarce.

The International Law Commission (ILC), an official body of the United Nations, drafted and adopted the UNCIW. Several principles enunciated in it will be critically assessed, by considering the diverging interests and views of states and their representatives, including the views of the Special Rapporteurs.[3]

There are more than 300 international watercourses (IWC), which are regulated by more than the same number of treaties. The fact is that the practices of states are as different as the issues of each watercourse are unique, and require different and special arrangements. A few representative treaties will be evaluated, with an appraisal of the principles associated with these treaties. In the process of the resolution of disputes that emerged between states, judicial pronouncements by the PCIJ, the ICJ, federal courts and arbitral tribunals will also be discussed. In order to tackle the issues efficiently, a separate discussion and assessment of each segment of the sources of international law, as stipulated in article 38 of the ICJ Statute, i.e., state practice, judgements of courts, international customs and writings of reputed publicists, will be carried out.[4]

In the light of water as essential requirement for people, the difficulty of access to water and the problems associated with its scarcity, a very careful and prudent resolution of the issue is of the utmost need in order to maintain smooth relations between riparian states. As has been analysed, the issue by its complex nature requires a prudent and balanced resolution reconciling the diverse interests of contestant states.[5]

2.2Sources of International Watercourses Law

2.2.1 Earliest Stage of Development of IWC

The quantum of water is the same as it was three billion years ago.[6] At the same time, its uses have gone up to such a point that to keep a balance between demand and supply has become a formidable task. Furthermore, such waters have also become strategic resources for several states in order to attain the socio-economic and political aspirations of their people as well as the best tool for bargaining with other riparian states. The other reason, however, for the huge increase in the use of the waters is the rising prosperity in human lives along with the rapid population growth. This exacerbates the problem further, and the consequence is obvious, more stress on water supply.

As a result of misuse and overuse of water, the quantity available as well as the quality has been found to be decreasing in several parts of the world. Consequently, it has given birth to several conflicts. Earlier development in the area by the courts, tribunals, bilateral as well as multilateral conventions, customs, agreements, and writings of the publicists greatly inspired and influenced the resolution of most of the conflicts. Ultimately, on numerous occasions, disputes were resolved amicably and peacefully by accommodating divergent interests, but some of them remain unresolved.[7] Resolution of the disputes was carried out in accordance with the concepts of co-operation and good neighbourly relations, based on equity, which were later largely followed by the other states in their bilateral relations and appreciated by the international community. Efforts will be concentrated on assessing and evaluating the far-reaching consequence of these achievements and their implications for the development of IWL.

As stated earlier, scientific innovation has enabled humans to undertake water diversion to far away places as exemplified in the western part of the United States, Australia, the then Soviet Union, Israel and several other parts of the world where grandiose diversion works have been undertaken.[8] In the Middle-East (ME), a complex and huge project, 'the peace pipeline' has been proposed, which is supposed to deliver water from Turkey to all Middle-Eastern countries including Israel. Apart from this, in Libya, there is an ambitious plan for collecting and diverting water in a pipeline, also called a 'great man-made river', which stretches from deep aquifers, so called “fossil” water. This is intended to augment the seriously depleted groundwater supplies in the coastal region, by bringing water from the hundreds of desert wells at Tazirbu and Saria.[9] Nevertheless, with such new developments and innovations, the formulation of particular rules that could address new circumstances and issues always remains a challenge to the international community.

The uneven availability, scarcity, misuse and overuse of the water, further confronted by the increasing demand of a rapidly increasing population will arguably make water the issue of the twenty-first century.[10] It should not be misunderstood that the scarcity of fresh water only causes conflicts between sovereign independent states. Similar problems also exist within states, as inter-state water disputes within a federal structure. As a matter of fact, most of the legal development of this area has been enriched by the inter-state disputes resolution mechanisms in the United States, India and other federal states. The significance of these decisions is of far reaching consequence in the development and codification of IWL. These decisions can be considered as a foundation of the rule of equitable utilisation in the use of IWCs.[11]

2.2.2 The United States

The decisions of the US Supreme Court in water disputes between states have provided a rich body of jurisprudence in the area of equitable utilisation. (In inter-state disputes, the US Supreme Court has used the term ‘equitable apportionment’ whilst in international relations the US has used the term ‘equitable utilisation’. There is no fundamental difference between these terms). To analyse all these decisions is not possible. However, a quick survey of some representative decisions is essential. In the United States, each of the 50 states enacts its own water law. Most such laws hold the view that the water resources are the wealth of the state through which they flow. For the protection of their existing use, when such use conflicts with other states, each state tends to rely on its own law. The reasons are apparent. The western part of the USA is an arid or semi-arid area where water is scarce and demand is huge. As a result, there were, and still are, water disputes in which a lot of norms, concepts and ideas have been developed in resolving these issues. Intriguingly, as the disputes went to the Supreme Court, they were resolved by the application of federal as well as international law, considering the dispute as similar to the disputes between two sovereign nations. As will be seen in the forthcoming sub-topic, such decisions have played a significant role in the development of the area where the main thrust of the decisions has been ‘equitable apportionment'.

In the Kansas v. Colorado cases of 1902 & 1907, Kansas, the downstream and prior user, blamed Colorado for violating the fundamental principle of “use your own without destroying another’s legal right” in the Arkansas River.[12] Colorado contested saying that because the river originates and flows in its territory, it has full authority to use its water without caring about the effects outside its border. The court in its judgement applied international law principles. The arguments of both states solely relying on their own respective water laws were refused. The court decided that 'equality of right and equity between two states forbids any interference with the present withdrawal of water in Colorado for the purpose of irrigation'.[13] The reasons given for the decision were that the court wanted to ensure that justice was done to both states in the given situation. Basically, the judgement upheld the rule of equitable apportionment of the waters, refusing their reliance on 'prior use' and the 'Harmon Doctrine'. The Harmon Doctrine is based on the 1896 legal opinion of Attorney General Harmon to the Secretary of State in relation to water sharing issues with Mexico-US. Harmon stated that the US had full authority to the US over water that flows in its territory without regards to its effect on Mexico. The court regarded prior use as only one of the factors that had to be considered in determining whether or not a certain use is equitable and not the only determining factor. When the case again came to the court later in 1907, the court reinforced the rule of equitable apportionment, advocating that both states were entitled to an equitable share of the flow, and this was the best way to allocate their respective shares.[14]

In the 1921 case of Wyoming v. Colorado, the latter diverted water from the Laramie River within its territory, and the former sought to restrain the diversion on the ground that intra-basin transfer is illegal and would hamper its prior use.[15] Colorado contended that it had full right to use its river water as it pleased, based on the Harmon Doctrine.Wyoming contested the legality of the diversion and maintained that its prior use must be respected. In a nutshell, the dispute was based on the principle of prior appropriation and territorial sovereignty. The Court, in its judgement, rejected the conflicting arguments of both states and provided that even though the constitutions of both states protect their respective prior uses, the basic rule in question was just and equitable utilisation. Therefore the court allocated the water to both states based on this principle. In the later case of 1940, where Wyoming alleged that the Colorado diversion works appropriated more than its share, the contention was refused by the Supreme Court stating that the diversion, unless it inflicted injury on the former, was lawful.[16]

In the New Jersey v. New York dispute of 1931, each state was claiming 'prior use' and 'use your wealth as you please' concepts. The former sought to restrain the diversion of the water of the Delaware River, whilst the latter argued that it had legal right to use its resource as it liked. The court held:

"both states have real and substantial interests and rights over the waters of a river that must be reconciled as best they can. The best way of achieving it is to secure equitable apportionment without quibbling over formulas."[17]

Moreover, Justice Oliver Wendell Holmes provided that,

“a river is more than an amenity; it is a treasure. It offers a necessity of life that must be rationed among those who have power over it”.[18]

The essence of the adjudication was to reconcile the interests of both states within the parameter of equitable apportionment. Therefore, New York was allowed the diversion of a certain quantum of water with conditions, as the best way to accommodate the interest of each party.

In the Colorado v. New Mexico dispute of 1975 over the allocation of the river's waters, where the latter (downstream) was depriving the former of using the waters, the court maintained that the applicable rule in the dispute is equitable apportionment.[19] That is to say, this conflict was also adjudged by the rule of equity, justice and fairness. The other more complicated, contentious and long running dispute was that of Arizona v. California, where in 1963 the Supreme Court held the view that 'equitable apportionment' is the major rule of adjudication of the issue in question.[20] Beside this, there are several other judgements in the United States that have enunciated and applied the same principles of adjudication. As demonstrated earlier, these judgements greatly influenced many areas of the world in the resolution of inter state water conflicts or conflicts between sovereign nations, thereby integrating as customary certain norms for state practices including treaty regimes.

In Connecticut v. Massachusetts, 1931, the latter was permitted by the Secretary of War to divert and impound floodwater during the monsoon season, i.e., May to June. Connecticut challenged the permission on the ground that it would impair navigation, fish stock and farm land. Massachusetts denied their contention. The court found that the disputes between states over diversion of water from streams flowing through both territories must be settled on the basis of equality of right. That did not mean that there must be an equal division of waters, but meant that the principles of equal right and equity shall be applied, having regard to both interests.[21] In the end, Connecticut’s practice was not found to be against the interests of Massachusetts but rather consistent with the principles. However, it is not my argument that these judgements should be treated as a precedent for all nations. They could rather be regarded as a catalyst and references for the resolution of water conflicts.[22]

Besides the Supreme Court, the involvement of the American Congress, Federal Government and the conclusion of Inter-State compacts have made possible the resolution of these disputes within the US. In all deliberations, reasonable and equitable apportionment of waters between the co-basin states was a norm that has been widely recognised and applied.[23] With respect to diversion, as distinct from apportionment, slightly different reasoning was used. For example, Colorado was prohibited from diverting water in the future without court permission, even though, it had not been proved that at the time such diversion would cause injury.[24] The development and enunciation of new principles in relation to sharing of waters and the benefit therefrom are highly innovative in the United States. McCaffrey advocated that the decisions of the courts of the United States were milestones in the development of IWL.[25] These decisions contributions are twofold, in that they have had both national arrangement and international impact on the management with its upstream and downstream riparian relations. Each exercise (negotiation, court decision, etc) had produced a new example of co-operation. From the Harmon Doctrine we have moved to the principle of equitable apportionment and equitable utilisation.[26]

2.3Water Disputes

2.3.1 Inter-State Water Disputes in India

In India, there are many inter-state disputes in relation to the sharing and allocation of the water of the rivers that flow along common boundaries. Most of the conflicts have been resolved through the decisions of the relevant Water Tribunal. However, some conflicts remain unresolved.[27] Nevertheless, the resolutions of the disputes have been based on equitable apportionment and efficient use of the waters. It will be useful to consider a few leading cases.

In the Krishna River Water dispute, 1961[28] a commission was constituted following a failed intervention by the central government to resolve the conflict. The facts of the case were that even after the promulgation of a new constitution of India in 1950, the Krishna River Basin was divided among several states, due to the high demand of water amongst the contestants (Maharastra, Karnataka, Andhra Pradesh, Madhya Pradesh and Orissa). As disputes emerged, eventually, the Krishna dispute tribunal was constituted and the disputes were referred to it. It must be acknowledged here that within Article 262 of the Indian Constitution and Inter-State Water Dispute Act,1956,[29] the authority for resolving water disputes between states lies in the central government and the judiciary is excluded from this jurisdiction:

"Under Clause X of the final order of the tribunal permitted the state of Maharastra to divert the water of Krishna River for use outside the Krishna River basin but imposed a limit beyond which Maharasta could not divert the said water within one water year”….The tribunal maintaining that a river is an indivisible physical unit further stressed that “the conflict of interests of the riparian states must be resolved by agreement, judicial decree, legislation or administrative control, so as to secure a fair and just distribution of the water resources among the concerned states."[30]