Introduction / 13 14 / International Watercourses Law and Its Application in South Asia
Chapter- One
Introduction
1.1 Significance of Water
Water is a key element for the existence of all kinds of life. Early civilisations in Mesopotamia, Egypt, India and China emerged on the banks of different rivers.[1] Water also has important implications for most religions of the world.[2] The Ganges, for example, is considered holy by millions of Hindus. Thus, not surprisingly, when Saint Narad met the great Indian King, Yuddhistira, his greeting was directly related to water: "I hope your realm has reservoirs that are large and full of water, located in different parts in the land, so that the agriculture does not depend on the caprice of the Rain-God".[3]
Water was equally important in the western world; two millennia ago, the eminent Greek Philosopher, Pinder, said that the "best of all things is water".[4] Italian scholar Leonardo da Vinci said "water is the driver of nature."[5] Life is impossible without water, and it has been reported that the human body consists of between 60 to 80% water by weight, depending upon the individual.[6] Thus it is quite natural for states, the principal actors of international relations,[7] to wish to safeguard their interests in fresh waters from the potentially diverging interests of other riparian states, and to reconcile their interests (insofar as this may be possible). In the present context of burgeoning population sizes,[8] and increasing demand for scarce water resources, if this problem is not properly identified, addressed and resolved, there is a strong possibility of conflicts threatening international peace and security.[9]
It may be useful at this point to provide a brief overview of the availability of water resources in its different forms. The volume of earth's water supply is approximately 326 million cubic metres. Of this, 97.5% is salt water (with 71% of the earth's surface being covered by seawater) and 2.5% is fresh water (8 million cubic metres). Of this fresh water, 0.4% is on the surface and in the atmosphere, 12.3% is underground, and 87.3% is in the polar ice caps and in glaciers.[10] Freshwater resources are an essential component of the earth's hydrosphere and an indispensable part of all terrestrial ecosystems. The freshwater environment is characterised by the hydrological cycle,[11] including floods and droughts, which in some regions have become more extreme and dramatic in their consequences.[12]
The water going out from the surface of the earth must come back in equal amounts - a perpetual cycle with no beginning, middle or end. In other words, the watercourse system is an element of the hydrological cycle, which consists of the evaporation of water into the atmosphere, chiefly from the oceans, and its return to earth through precipitation and condensation.[13] The volume of groundwater is large and covers a significant quantity of the freshwater system,[14] however, the international community (IC) has not agreed upon a set framework of rules on groundwater and there are several issues that need to be resolved before such rules will be acceptable to all states.[15] As McCaffrey rightly observed, the area of groundwater is still in a primary and inchoate stage:
"as such, the law of international groundwater may only be said to be, in the embryonic stages of development, .. .. but this situation should prevail only until a special regime can be tailored for international groundwater".[16]
Eventually, it appears that until the full regime is developed on the issues, groundwater is covered by the rules of equitable utilisation adopted in the UN Convention on the Non-Navigable Uses of International Watercourses (UNCIW).[17] Regardless of the definition of a watercourse (WC) in the 1997 UN convention, which includes groundwater,[18] there is still a lot that needs to be done in order to obtain an agreeable formula on the issue. With regard to the lack of freshwater, Falkennar has distinguished four different causes of water scarcity[19]: aridity, drought, desiccation, and water stress.
1.2 Uneven Availability and Scarcity
In order to accrue optimum benefits from an International Watercourse (IWC) it must be developed in a holistic, integrated manner, considering the whole length of a watercourse as a unit. This fact itself highlights the significance of riparian co-operation in order that maximum benefits can be accrued from an IWC due to its geographical and hydrological circumstance, e.g., a good site to construct a reservoir lies in one country (Nepal), but such augmented water can be used in another country (India); flood damage can be prevented (India and Bangladesh), and hydropower plants can be constructed in other countries (in Nepal and India). Geography and hydrology determine this fact. In fact Nepal owns magnificent gorges where high dams can be built and the Himalayan waters stored, but such sites are not available in India, Bhutan and Bangladesh.[20] Therefore, cooperation between the riparian states is essential.
The regulation of freshwater resources did not receive much attention in the international arena prior to the 1950's due to the relative lack of scarcity, fewer international disputes over the use of water, relatively low levels of use and so forth.[21] However, during the latter half of the nineteenth century, efforts were made to establish the rule of free navigation of rivers. Such rules originated with a (Revolutionary) French decree[22] of November 16, 1792, which opened the Rivers Scheldt and Meuse to the vessels of all riparian states. The Treaty of Vienna of 1815,[23] along with many navigational treaties between nations was based on this decree.[24] The Treaty resolved the long and complex disputes on navigational rights of European states. However, even at this stage, there were disputes between countries concerning the use of freshwater. The efforts to settle them, which will be analysed at the appropriate juncture of the book, indicated quite clearly the relevance of the issue, and laid much essential jurisprudential groundwork, which has been developed since 1950. A few instances of international disputes over international rivers include the dispute relating to the River Helmond in 1872 and 1905 (between Afghanistan and Persia), the Nile (between Egypt and nine other North African states) and the Colorado (between Mexico and the USA). At the end of the nineteenth-century there were numerous conflicts relating to shared water resources in India, Germany, Austria, Switzerland and the U.S.A. Municipal court judgements of these and other states, have significantly contributed to the codification and development of international law in this area. In the next chapter, a critical analysis of some of the more important of these decisions will be provided.
As stated above, the use of water increases in comparison to its availability, due to alarming population growth and unsustainable use of water, e.g., by polluting it, which has contributed to its scarcity. If the issues cannot be resolved in time, it may reach a level, which threatens the concepts of peace and security enshrined in the Charter of the United Nations.[25] It is because water can neither be substituted nor produced. Whilst some disputes have been resolved, many more remain, and it is indeed a real challenge to the international community and international law to resolve these disputes to the satisfaction of the contesting states. The issue has been further exacerbated by the increases in daily water consumption, which is the inevitable result of enhanced standards of living.[26]
1.3 Emerging Principles
The fundamental area of this study will be equitable and reasonable use of an IWC between riparian states. This book will argue that the principle of equity and in particular the rule of equitable utilisation, among others, will be the best way of resolving disputes involving IWC’s. The case of Nepal, India, Bangladesh and Bhutan will be dealt with in view of equitable legal principles. It should be noted that the topic of pollution is not directly addressed, although there are occasions where the concepts “spill over”. For example as discussed below, the application of no harm rule for the North American context involves discussion of pollution and analyses the failure of the no harm rule in disputes between the US and Canada. The research will consider and evaluate the existing law on IWC, analyse issues of Nepal’s IWC and its link to regional issues, with the objective of assessing current obstacles and making recommendations for its resolution in the spirit of international water law (IWL). However, the nature of the particular problems facing Nepal and Bhutan are different from those of other countries. From their point of view, the main problem is not the lack of water but how to share and allocate the benefits of these abundant water resources, with particular reference to India. Whereas, the issues of other riparian states i.e., India and Bangladesh, are how to augment the water in the dry season and allocate it, and also how to avert and mitigate the affect of flooding in the monsoon season.
Nepal has immense hydropower potential of 83,000 megawatts (MW). Apart from this, these waters can be used for several purposes simultaneously[27] e.g., drinking, irrigation, navigational, industrial and other uses. So far, little benefit, has been taken[28], that is to say, vast resources are still not being tapped. The reasons for this are lack of capital, technology and riparian objections. The huge water resources available to Nepal have not been beneficially utilised so far. Worse still, in recent years considerable harm has occurred during the drought and monsoon seasons not only in Nepal, but also in India and Bangladesh, which have been severely affected by flooding, with huge loss of life and property. It is asserted, however, that if arrangements could be made for the fully beneficial use of these resources by all states concerned, it would be a milestone event for both the alleviation of poverty and the development of infrastructure within all four of the member states of the South Asia Association for Regional Co-operation (SAARC).[29] The advantages identified so far, are flood control, increased volume of water for irrigation (downstream benefits), navigation, recreation and miscellaneous other benefits.[30] Tremendous harm is caused annually by flooding[31] and drought, which could be prevented by international co-operation, and the scenario could be reversed by adopting new measures for mitigating and averting flood water. International co-operation on the use and sharing the immense benefits of these resources has been duly acknowledged but divergence of interests, suspicion, distrust and non-cooperation have severely prohibited such opportunities. There is a huge potential being wasted, that could be utilised by co-operation.[32]
In order to fulfil the needs and aspirations of the people, use of these abundant resources is urgently required. It can only be changed by the states themselves. In the past, few projects were developed, and even these projects could not yield equitable and reasonable benefits to the parties. What is more, implementation of previous agreements was not carried out pursuant to the provisions of the treaties. As a matter of fact, from these experiences Bhutan, Bangladesh and Nepal are very cautious in dealing with India with regards to sharing of the benefits from these resources. The situation will be described in chapter four. The reasons are obvious, India and Nepal had concluded two treaties in the mid-1960’s, primarily for irrigation, flood control and miscellaneous purposes including the Kosi project and the Gandak project. The Nepalese people and the political parties alleged that these were carried out entirely for Indian benefit, ignoring Nepal's rights to these resources. In other words, it was a ‘sell out’ of the natural resources.[33] Similarly, due to the construction and operation of the Farakka barrage, at the border between India and Bangladesh, on the Ganges River, the barrage has caused severe adverse impact to Bangladesh and planted the seeds of distrust and suspicion toward the former. Bhutan also appears not satisfied with the outcome of past agreement. As will be described later, this project seriously caused adverse affects in Bangladesh for a long time period.[34]
Water resources are the only substantial available natural resources in this region besides coal and gas, and there is an urgent need to utilise these water resources expeditiously for the benefit of the people of the region. There are bottlenecks preventing the achievement of
this objective, which must be overcome by enhancing bilateral as well as regional co-operation.[35]
1.4 Challenge Ahead
This book aims to discuss and evaluate the present state of IWL. It will also try to link the issue to Nepal's circumstances, in which water sharing and taking benefits therefrom must be according to the rules of international law. In principle, international law is equally applicable to all nations. In practice, economically weak nations, such as Nepal or Ethiopia are treated unequally. For instance, Egypt is able to use most portions of the waters in the Nile, at the same time, Ethiopia having significantly contributing waters in Blue Nile (main tributary of the Nile), is prohibited from using its equitable share of waters in the same river by the objections and threats of former. In a similar way, Nepal is not able to use its own share of water because of Indian objections stating that such new use would impair its prior use. India has developed the Farakka barrage. Egypt developed the Aswan dam (with Soviet Union support). China is developing the Three Gorges projects from its own resources, in spite of severe criticism from international spheres.[36] Of course, dams are often criticised for political and environmental considerations unrelated to riparian issues. In these cases international assistance has not been forthcoming. International cooperation has not been provided to enable the implementation of projects for example in the following cases, Narmada in India, and the Southern Antolia project in Turkey. There is also a current conflict over the ongoing supply of drinking waters from Malaysia to Singapore. In order to develop such water projects, poor countries do not have resources, they need international or bilateral co-operation in money, technology and skilled manpower. Foreign donors seek clearance from other riparian states and these riparian states object to such a project stating it will affect them adversely. In many cases, donors cancel funding. Therefore, a weak and poor country does not have its own resources and donors refuse to provide assistance on the basis of such objections. Suggestions are made in this thesis on how to resolve such a discriminatory system. There are a few instruments such as debt relief mechanisms and Millennium Development Goals, which favour poor, geographically handicapped and vulnerable nations.[37] The adoption of similar adequate arrangements specific to IWCs will be recommended. Arguably, however, the principles of equity and the rule of equitable utilisation could be the best weapons to tackle these sensitive issues.