THE 1997 UN Watercourses Convention is a global framework agreement with the goal to ‘ensure the utilisation, development, conservation, management and protection of international watercourses and for the promotion of their optimal and sustainable utilisation for present and future generations.’ In line with this, the Convention requires that ‘an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse’ (The UNWC, 1997).

Tanzi and Milano, in their illustrious paper on Dispute Settlement mechanism under the 1997 UN Water-course Convention (UNWC) have concluded that ‘With China, Turkey and India involved in a number of major water disputes, there is little chance that any of these countries will join the UNWC in the near future.’¹

While evaluating the prospects of UNWC in China and Turkey is beyond the scope of this paper, it is argued that there is a recognition by the Ganga riparian countries in the bilateral treaties concluded between them in 1996 that water scarcity and conflicts over it are a serious threat to regional stability and peace and there is thus a need to enhance regional cooperation on trans-boundary water resource management to promote and strengthen their relations of friendship and good neighbourliness. The Ganga countries are also adopting effective strategies for river basin management at the sub-national level within the domestic country context.

Thus the existing bilateral arrangements and the new developments in the Ganga countries at the national and sub-national level with the objective to augment water resources so as to ensure regional cooperation and inter-generational equity, if complemented with effective persuasion of government and non government actors, may pave the way for the Ganga countries to consider adopting a more uniform and facilitative framework on trans-boundary water resource management – the 1997, United Nations Water Course Convention.

Internationalization of rivers has long been a subject matter of legal concern since.² With the rise of international borders, what were once domestic issues became international disputes over the use of rivers that served as important waterways for trade and commerce. The nation states asserted their territorial control and sovereignty over rivers as trade and commerce were largely dependent upon and flourished due to unhindered navigational uses of waterways. The ecological concerns and role of trans-boundary rivers to serve as ecosystems for the larger interest of human kind and hence the need for their reasonable and equitable utilization, however, is a concern of relatively recent origin and thus the bilateral water treaties concluded in earlier times by and large lacked ecological perspectives. Thus, absolute territorial sovereignty over the river waters flowing through the territory of one country came to be understood as the norm, giving rise to upstream/downstream (riparian) claims and controversies over use of river waters. These controversies remain as long standing problems worldwide and involve complex legal issues for all users.³

 

Since the turn of the 20th century, the growing demand and competition over trans-boundary water resources increased the possibility of conflicts around the world and therefore presented a need to evolve a legal regime that would help in defining and balancing the competing claims of national actors. At the international level, the doctrine of ‘limited territorial sovereignty’ that arose out of the context of disputes arising on control and utilization of trans-boundary water resources, provided a basis to the development of ‘international water law’ and gave birth to the international law principle of ‘reasonable and equitable utilization’ that continues to govern the legitimacy of nation states as it is now recognized as the rule of customary international law.⁴

 

Given the visible impacts of climate change on the world’s water resources and river ecosystems, water is once again at the forefront of international agenda with the World Water Vision process in place.⁵ It is in this context that the potential of international law and in particular UN Watercourse Convention, 1997 to address conflicts between the Ganga countries over ‘reasonable and equitable utilization of water resources needs to be explored.

Before we discuss the international law principles that provide the framework for trans-boundary water resource management under the 1997 UNWC, it would be useful to understand as to how these principles evolved. In an era when water resources were plenty, the jurisprudential principles of ‘discovery’ and servitude defined the ownership claims over the resource. The principle of discovery said that whoever discovers the resource has the dominium over it. If the dominant owner allowed the use of resource at his will, because it was like slave to his property, the principle of servitude could apply. When the dominant owner allowed the use of his resource like a common property resource, the principle of profit a pendere would apply. Alternatively speaking, he could ease out his claims over the resources, allowing for easement to share the resources.⁶ This was the state of affairs in the ancient common law system that still dominates the Ganges riparian countries that were once governed by the common law system and is vicariously reflected in their domestic legislation at the federal, state and local level.

In the regional and national context when it came to defining the competing claims of sub-national actors, such principles of discovery or servitude could not be applied simpliciter. Therefore, these were replaced with more equitable principles such as the principle of ‘equitable apportionment’ that prevailed in the domestic legal system of many countries evolved as the primary rule that defined and balanced the competing claims of sub-national actors with respect to the management and sharing of water of rivers and streams.

 

With advancements in international environmental law and the increasing global consensus to protect the environment (that subsumed water since Stockholm, 1972) at the international level, the international law principles of ‘common heritage of mankind’, the principle of ‘intergenerational equity’ and other similar principles came to be understood as part of customary international law or to say were increasingly accepted as general principles of international law. International water law (as a result of treaty developments on environment) has evolved and crystallized through state practice and the codification and progressive development efforts undertaken by the UN and private institutions.

 

The treaty practice in this area encompasses a broad range of instruments, from general agreements, which provide basic principles for water resource development to specific contractual agreements. These principles together gave rise to the notion or doctrine of limited territorial sovereignty (over resources).⁷ This important doctrine further gave rise to other important principles of water resource management that are recognized by international conventions, judicial decisions and international treaties. These are: the principle of equitable and reasonable utilization; an obligation not to cause significant harm; the principles of cooperation, information exchange, notification and consultation; and the peaceful settlement of disputes. These principles form the basis of the 1966 Helsinki Rules on the Uses of the Waters of International Rivers and the 1997 UN Convention on Non-Navigational Uses of International Watercourses (hereinafter UN Watercourses Convention).⁸

Principles of trans-boundary water governance establish basic norms that states in an international river basin need to adhere to and provide a framework contained in the UNWC, 1997 which is a framework convention based on these international law principles of trans-boundary water resources management. These principles also formed the basis for the 1966 Helsinki Rules that are understood as the basis for the codification of international law on management of international water courses. In order to understand the prospects of UNWC in the Ganges region, it would important to understand these principles and what it would mean for the Ganga countries to agree to them, especially given the history of disputes and the larger hydro-politics in the region. These principles are being briefly explained.⁹

 

The Theory of Limited Territorial Sovereignty: This theory also known as the ‘theory of sovereign equality and territorial integrity’ evolved out of the context of disputes over trans-boundary water resources and the need to provide a basis to decide the competing claims of riparian sovereign states. The theory is based on the assertion that state sovereignty by a riparian over water resources cannot be exercised in a way that prejudices the rights and interests of co-riparians. In other words all riparians that share an international watercourse are entitled to an equitable share of its benefits. In so providing, it simultaneously recognizes the rights of both upstream and downstream countries because it guarantees the right of reasonable use by the upstream country in the framework of equitable use by all interested parties. Principles of equitable and reasonable utilization and an obligation not to cause significant harm are thus part of the theory of limited territorial sovereignty.¹⁰ This theory has been adopted in a majority of the treaties in recent years, e.g. the 1995 agreement on the cooperation for the sustainable development of the Mekong River basin,¹¹ the 1995 SADC protocol on shared watercourse systems,¹² and the 2002 framework agreement on the Sava River basin.¹³

 

Principle of Equitable and Reasonable Utilization: This is by far one of the most contested principles of international water law. It provides that each state has to utilize waters for beneficial uses within its own territory in a way which is equitable and reasonable. The equitable and reasonable use is based on the notion of shared sovereignty and equality of rights. The principle, however, does not necessarily imply an equal share of waters. In determining the equitable and reasonable share, a number of scientific, hydrological, hydro-geological, demographic and social factors have to be kept in mind along with the current, potential and future needs of the population dependent on the water resources as well as climatic and ecological factors of a natural character and availability of other resources, etc. should all be taken into account.¹⁴ This is an established principle of international water law and has substantial support in state practice, judicial decisions and international codifications.¹⁵

An Obligation Not to Cause Significant Harm: This principle, considered as part of customary international law, states that no country that is part of an international drainage basin is allowed to use watercourses in their territory in a way that would cause significant harm to other basin states or to their environment, including harm to human health or safety.¹⁶ A number of upper riparian countries have been opposing the UNWC on the pretext that UNWC favours lower riparian states as it is perceived that only an upper riparian can cause significant harm. However, there have also been issues with the definition or extent of the word ‘significant’ and how to define ‘harm’ as a ‘significant harm’.

 

Principles of Notification, Consultation and Negotiation: Every riparian state in an international watercourse is entitled to prior notice, consultation and negotiation in cases where the proposed use by another riparian of a shared watercourse may cause serious harm to its rights or interest. These principles are generally accepted by international legal documents. However, naturally, most upstream countries often oppose this principle. It is interesting to note that during the negotiation process of the 1997 UN Watercourses Convention, these principles, which are included in Articles 11 to 18, were opposed by only three upstream riparian countries: Ethiopia (Nile Basin), Rwanda (Nile Basin) and Turkey (Tigris-Euphrates Basin).¹⁷

Principles of Cooperation and Information Exchange: This principle states that it is the responsibility of each riparian state of an international watercourse to cooperate and exchange data and information regarding the state of the watercourse as well as current and future planned uses along the watercourse.¹⁸ These principles are recommended by the 1966 Helsinki Rules,¹⁹ while Articles 8 and 9 of the UN Watercourses Convention make it an obligation. The 1944 USA-Mexico Water Treaty, the 1964 Columbia Treaty between USA and Canada, the 1960 Indus Waters Treaty,²⁰ the ILA’s 1982 Montreal rules on water pollution in an international drainage basin,²¹ the 1995 SADC protocol on shared watercourse systems,²² the 1995 Mekong River basin agreement,²³ as well as the 2002 framework agreement of the Sava River basin²⁴ all incorporate these principles.

 

Peaceful Settlement of Disputes: This principle advocates that all states in an international watercourse should seek a settlement of the disputes by peaceful means in case states concerned cannot reach agreement by negotiation. This principle has been endorsed by most modern international conventions, agreements and treaties, e.g. the 1966 Helsinki Rules²⁵ and 1997 UN Watercourses Convention.²⁶ It has also been incorporated in major treaties in recent years, e.g. the 1960 Indus Waters Treaty,²⁷ the 1995 SADC protocol on shared watercourse systems,²⁸ the 1995 Mekong River basin agreement²⁹ and the 2002 framework agreement of the Sava River basin.³⁰

 

Prior to understanding the bilateral legal instruments concluded between the Ganga countries, it would be worthwhile to understand the Ganga basin itself that is marked with a turbulent history of disputes over sharing of water resources due to the partition of the country and how it still drives hydro-politics in the region.

The Ganges or Ganges-Brahmaputra-Meghna/Barak (GBM) Basin comprises a river system that originates in the eastern Himalaya and spans over 1.758 million km2, of which 8% lies in Bangladesh, 8% in Nepal, 4% in Bhutan, 62% in India, and 18% in the Tibetan region of China (the literature gives different estimates of the basin’s regional distribution). The three rivers making up the basin meet in Bangladesh and flow to the Bay of Bengal as the Meghna River.³¹ The tributaries flowing into the GBM are international in nature. In addition to the three main rivers of the GBM, there are more than 50 smaller rivers and tributaries that enter Bangladesh from India. Because the system is so interconnected, it is very difficult to distinguish how much water contributes to the entire system.³² The geographical complexity has given rise to number of disputes in the river basin that have to be understood in the light of political developments that happened in the subcontinent in the last 60 years.³³

The Ganga basin known for its complex trans-boundary river systems that cut across three sovereign nations is also known for its rich history of disputes. Conflicts and negotiations related to the Ganges have been ongoing for more than 60 years. What was once a domestic issue, transformed into trans-boundary water conflicts over sharing of river waters as the number of riparians grew from one to three, and after the partition of India in 1947, the conflict hitherto became international. With the independence of Bangladesh (former Eastern Pakistan) in 1971, the main parties to the conflict were Bangladesh and India and have remained so until now.

 

However, the scenario is not very different between India and Nepal wherein as many as six bilateral instruments have been signed between the two countries. However, the contentions by both the countries over sharing of water and planned upstream projects remain unresolved. For all practical purposes, the Himalayan mountains separate Tibet from the rest of the Ganges riparians. In reality, Tibet was never part of the negotiations that took place. Shah, Prakash and Goodrich have concluded that Tibet’s geographical isolation, combined with the fact that Bhutan, and Nepal are land locked, and Bangladesh is surrounded by Indian territory have major implications on the positions and dynamics of the basin’s hydro-politics.³⁴

It is interesting to note that the bilateral treaties between the Ganga riparian countries were concluded close to when the UNWC draft framework was being finalized, i.e., in 1996. It is, therefore, not surprising that these treaties reflect some of the evolved principles on trans-boundary water resource management that are akin to the international law principles under the UNWC as discussed above. The key question, therefore, that one is faced with is regarding the efficacy of bilateral instruments. The big legal challenge, however, is to analyze whether bilateralism would be more effective and preferred by Ganga countries (as seems to be the case) over multilateralism, as none of the Ganga countries have signed the UNWC 1997 so far.

 

While the bilateralism versus multi-lateralism debate is not the focus of this paper and would require a separate exercise, in essence it can be said that since the bilateral treaties between India and Nepal and India and Bangladesh do contain provisions that are consistent with the international law principles of trans-boundary river management, these countries do recognize and agree to the established principles or to the framework of UNWC, though under different bilateral arrangements. It would, therefore, be prudent to analyze the two key treaties, viz. the Mahakali Treaty concluded between India and Nepal in 1996, and the Farraka (India-Bangladesh) Treaty, 1996. However, there are as many as six instruments that have been signed between the riparians and are listed below to give an idea of the legal landscape and a history of efforts made to resolve conflicts and competing claims over the waters. The agreements/ treaties are as follows:

1. 1920 Agreement between His Majesty’s Government of Nepal and India (the then British Empire) for constructing the Sarada Barrage on the Mahakali River.

2. Agreement between His Majesty’s Government of Nepal and the Government of India concerning the Kosi Project, 25 April 1954. The treaty was subsequently amended on 19 December 1966.

3. Agreement between His Majesty’s Government of Nepal and the Government of India on the Gandak Irrigation and Power Project, signed in Kathmandu on 4 December 1959. The treaty was subsequently amended on 30 April 1964.

4. Agreement between the Government of the People’s Republic of Bangladesh and the Government of the Republic of India on sharing of the Ganges waters at Farakka and on augmenting its flows, signed on 5 November 1977 in Dhaka.

5. Treaty between Nepal and India concerning the integrated development of the Mahakali River including Sarada Barrage, Tanakpur Barrage and Pancheshwar Project, 12 February 1996, signed in New Delhi.

6. Treaty between the Government of the People’s Republic of Bangladesh and the Government of the Republic of India on sharing of the Ganga/Ganges waters at Farakka, signed on 12 December 1996 in New Delhi.

 

Each of these bilateral treaties and agreements has a complex history behind them. Addressing the issues that emerged and drivers of conflicts between the Ganga countries is again beyond the scope of this paper. However, in order to understand the prospects of UNWC in the Ganga region, it would be important to analyse the key treaties, i.e., the 1996 Mahakali Treaty between Nepal and India and the 1996 Ganges Treaty between India and Bangladesh so as to explore the extent to which the mechanisms provided under these treaties are effective and if they address the key principles of trans-boundary water resource management.

These two latest treaties of the Ganges basin were selected for study as both were signed during the negotiation process of the UN Watercourses Convention (1997) and are valid for a significantly longer period, 75 years and 30 years respectively. They are being analyzed so as to understand their efficiency in dealing with trans-boundary water disputes, and reasonable and equitable utilization of trans-boundary watercourses.

 

The Mahakali is a principal tributary of the Ganges and border river between Nepal and India. This river is also known as the Sarada in India. The Mahakali Treaty was signed on 12 February 1996 (it came into force on 5 June 1997) between Nepal and India concerning the integrated development of the Mahakali River, including Sarada Barrage, Tanakpur Barrage and the Pancheshwar Multipurpose Project. Of these, Sarada Barrage and Tanakpur Barrage were completed in 1920 and 1992 respectively. This treaty absorbed the regime established by the 1920 Sarada agreement,³⁵ and 1991 MoU and 1992 joint communique for Tanakpur Barrage.³⁶ The treaty endorsed the idea of constructing the Pancheshwar Multipurpose Project (PMP).³⁷ Hence, from a structural viewpoint, the Mahakali Treaty combines three distinct treaties related to the water sharing of the Mahakali River, the Sarada agreement, the Tanakpur agreement and the PMP.³⁸ The treaty is valid for 75 years from the date it came into force.³⁹ The Mahakali Treaty endorsed the principles of information exchange and cooperation.⁴⁰

 

The treaty provides for the formation of the Mahakali River Commission for information exchange, cooperation and implementation of the treaty.⁴¹ It sets out clear guidelines for the formation of the Mahakali River Commission, as well as its jurisdiction.⁴² The commission shall be composed of an equal number of representatives from both parties and its expenses shall be borne equally.⁴³ The functions of the commission include information exchange and inspection of all structures included in the treaty, make recommendations for the implementation of the treaty provisions, expert evaluation of projects, monitor and coordinate plans of action, examine any differences arising between the parties concerning the interpretation and application of the treaty.⁴⁴

The treaty approves the principles of equitable and reasonable utilization, the equitable distribution of benefits, and an obligation not to cause significant harm. In defining the jurisdiction of the Mahakali River Commission, it states: ‘The commission shall be guided by the principles of equality, mutual benefit and no harm to either party.’⁴⁵ The treaty also acknowledges an obligation not to cause harm.⁴⁶ Article 7 reads: In order to maintain the flow and level of the waters of the Mahakali River, each party undertakes not to use or obstruct or divert the waters of the Mahakali River adversely affecting its natural flow and level except by an agreement between the parties.

 

This means each party has an obligation to maintain the natural flow of the river. However, this obligation does not preclude the use of the waters by the local communities living on both sides of the Mahakali River, not exceeding 5% of the average annual flow at Pancheshwar.⁴⁷ Article 8 acknowledges the right of both parties to independently plan, survey, develop and operate any work on the tributaries of the Mahakali River as long as such use does not affect the rights of both parties stipulated in Article 7. Thus, together Articles 7 and 8, and 9(1) accept the theory of limited territorial sovereignty, where each party has the right to use the water as long as it does not preclude the rights and interests of the co-riparian.

However, the terms ‘no harm’ and ‘adverse effect’ are not defined in the treaty and thus leave room for controversy.⁴⁸ The treaty indirectly restricts unilateral projects along the Mahakali River.⁴⁹ It states: Any project, other than those mentioned herein, to be developed in the Mahakali River, where it is a boundary river, should be designed and implemented by an agreement between the parties on the principles established by this treaty.

Hence, it is an obligation for either party to reach an agreement before commencing any project on the Mahakali River. It makes it binding to both parties to obey the principles of the Mahakali Treaty, inter alia principles of equality, benefit sharing and no harm.⁵⁰ Ultimately, it discourages the unilateral development of the river and approves the principles of cooperation, consultation and notification.

 

The treaty provides a detailed dispute resolution and arbitration mechanism⁵¹ if the disputes are not resolved by the Mahakali Commission established under Article 9 of the treaty. The treaty provides for the establishment of an arbitration tribunal composed of three arbitrators conducts all arbitration.⁵² One arbitrator must to be nominated by Nepal, one by India, with neither country able to nominate its own national, and the third arbitrator is to be appointed jointly, who, as a member of the tribunal, shall preside over such tribunal. In the event that the parties are unable to agree upon the third arbitrator within 90 days after receipt of a proposal, either party may request that the Secretary General of the Permanent Court of Arbitration at The Hague appoint an arbitrator who shall not be a national of either country.

The inclusion of the Permanent Court of Arbitration in this article strengthens the dispute resolution mechanism of this treaty. The decision of the arbitration tribunal is final, definitive and binding on both parties.⁵³ The venue of arbitration, the administrative support of the arbitration tribunal, and the remuneration and expenses of its arbitrators shall be agreed upon by an exchange of notes between the parties.⁵⁴ Moreover, the parties may agree on alternative procedures of settling differences arising under the treaty through an exchange of notes.⁵⁵ Thus, the Mahakali Treaty offers a good example for dispute settlement in international rivers. It provides a relatively elaborate and advanced dispute resolution mechanisms that are in conformity with the UNWC mechanism of dispute settlement provided under Article 33.

After the commissioning of the Farakka Barrage along the mainstream of the Ganges in 1975 and subsequent conflicts regarding the water shortage in downstream Bangladesh, India and Bangladesh signed two treaties (1977 and 1996) and two MoU (1983 and 1985) for sharing the Ganges waters at Farakka. On 12 December 1996, the two governments signed the most recent treaty for sharing the Ganges waters at Farakka during the dry season (1 January to 31 May). This treaty is valid for 30 years.

 

The treaty establishes a joint committee and its jurisdiction for monitoring the treaty and exchanging data and information.⁵⁶ The joint committee, consisting of an equal number of representatives nominated by the parties, is entrusted to observe and record the daily flows below Farakka Barrage as well as at Hardinge Bridge.⁵⁷ The treaty requires the joint committee to submit all data collected by it and an annual report to both governments.⁵⁸

The joint committee is responsible for implementing the arrangement of the treaty and examining any difficulty arising out of the implementation of the arrangements and of the operation of the Farakka Barrage.⁵⁹ The treaty as per it preamble as well as other provisions⁶⁰ recognizes the need to cooperate to find a solution to the long-term problem of augmenting the flow of Ganges during the dry season. These articles approve the principle of cooperation and information exchange.

 

The preamble of the treaty notes that both countries wish to share the waters of international rivers and optimally utilize the water resources of the region in the field of flood management, irrigation, river basin development and hydropower generation for the mutual benefit of the people of the two countries. Although oblique, the inclusion of these issues could result in the cooperation of other water related issues and hence promote overall Ganges basin development.⁶¹ Articles IX and X of the treaty adopted the principles of equitable utilization and an obligation not to cause harm. Article IX states that: ‘Guided by the principles of equity, fairness and no harm to either party, both the governments agree to conclude water sharing, treaties/agreements with regard to other common rivers.’

On the other hand, Article X mentions: ‘The sharing arrangements under this treaty shall be reviewed by the two governments at five years interval or earlier, as required by either party and needed adjustments, based on principles of equity, fairness and no harm to either party made thereto, if necessary.’

Thus, both the articles under the Ganga Treaty endorsed the principles of equitable and reasonable utilization and no harm or theory of limited territorial sovereignty. Article IX is one of the strongest legal instruments included in the 1996 Ganges Treaty. The provision of this article ensures the commitment of future cooperation for the other 53 common rivers between Bangladesh and India. It ultimately discourages unilateral development on the other common river and agreed to conclude water sharing treaties/agreements on the basis of the principles of equity, fairness and no harm to either party. Thus in turn, Article IX acknowledges the necessity of coordinated management of the watercourses and the theory of limited territorial sovereignty. Unlike the 1996 Mahakali Treaty, the 1996 Ganges Treaty does not include clear dispute resolution and arbitration mechanisms.⁶²

 

The preamble of the treaty mentions that both parties wish to find a fair and just solution without affecting the rights and entitlements of either country. It states that if the joint vommittee fails to resolve conflicts arising out of the implementation of the treaty, it should be referred to the Indo-Bangladesh Joint River Commission.⁶³ If the difference or dispute still remains unresolved, it should be referred to the two governments, which would meet urgently at the appropriate level to resolve it through discussion. What level of government it refers to and what the time frame is for the settlement of disputes are not specified in the treaty. In addition, the treaty does not bind any party to resolve the dispute if a disagreements persist.⁶⁴ Hence, the treaty establishes political means, not arbitration, to resolve any dispute arising from the implementation of the treaty. Undoubtedly, the absence of arbitration mechanisms makes it a less effective legal instrument than the Mahakali Treaty.⁶⁵

 

On 21 May 1997, the UN General Assembly adopted the UN Watercourses Convention.⁶⁶ This convention incorporated the principles of trans-boundary water resources management, building on the 1966 Helsinki Rules. So far 34 sovereign nations, placed in different trans-boundary water contexts, have ratified the UNWC,⁶⁷ Vietnam being the latest addition in the league. However, none of the Ganga riparians have become parties to the convention. It is noteworthy that among the Ganges riparian countries, Bangladesh and Nepal both voted in favour of adopting the convention, but none of the countries ratified or acceded to the convention. China voted against the convention and in the case of India it was clear from the beginning that the country was highly unlikely to ratify it because it abstained during the vote adopting the convention.

India officially noted four objections regarding the convention. These are as follows:⁶⁸

1. Article 3 of the convention ‘failed to adequately reflect the principle of freedom, autonomy, and the rights of states to conclude international agreements on the international courses without being fettered by the present convention.’

2. Article 5, dealing with equitable and reasonable utilization and participation, ‘has not been drafted in a clear and unambiguous terms stating the right of State to utilize an international watercourse in an equitable and reasonable manner and Article 5 in the present form is vague and difficult to implement.’

3. Article 32, dealing with non-discrimination, ‘presupposes political and economic integration among states of the region. As all watercourse regions are not so integrated, this provision will be difficult to implement in certain regions. Hence, it did not merit inclusion in the convention.’

4. Regarding Article 33, dealing with peaceful settlement of disputes, India asserted ‘any procedures for peaceful settlement of disputes should leave the procedure to the parties to the dispute to choose freely and by mutual consent a procedure acceptable to them.’

 

The valid and immediate question that arises is: why have Bangladesh and Nepal not ratified or acceded to the convention, even though both voted for its adoption? It is difficult to answer this question in the absence of any official clarifications, statements and, unlike India, objections against a particular article or articles of the convention by the governments of Bangladesh and Nepal.⁶⁹

From the analysis of the two key bilateral treaties concluded in 1996 between the Ganga riparian’s in the light of the doctrine of limited territorial sovereignty which is widely accepted as Jus Cogens, and which further encapsulates principle of reasonable and equitable utilization and principle of no harm as sub-sets, it can be derived that the existing treaties are cognizant of the well established principles of trans-boundary water resource management. However, they certainly lack in many areas including the lack of uniformity in approach as far as effective and holistic management of the basin as a single unit is concerned.

As the mechanisms provided under these treaties will continue to address issues arising from the quantum and flow of shared waters, there is need for a more effective and uniform approach which is provided under the 1997 UNWC. The other option being a tri-party agreement between Nepal, India and Bangladesh on river water sharing which again appears to be a remote possibility given that the hydro-politics in the Ganga basin is also a factor of geopolitics in the region.

 

Another significant point is that that UNWC is a framework convention that provides a larger framework leaving much for the parties to decide and agree upon and with a flexibility to adopt bilateral arrangements. There is a growing trend in adopting framework water laws in the domestic country context⁷⁰ which could be possible after significant convincing and mobilizing at the sub-national level (that had almost similar water disputes). A similar approach should be adopted for the UNWC given that there is already a realization that addressing water disputes is important for ensuring regional security and peace, as well as ensuring water security for the growing population in the region.

 

Footnotes:

1. Attila Tanzi and Enrico Milano, ‘Article 33 of the UN Watercourses Convention: A Step Forward for Dispute Settlement?’ Water International 38(2), 2013, 166-179, DOI: 10.1080/02508060.2013.782262.

2. In 1616 an Austro-Turkish treaty was signed in Belgrade wherein the Austrians were granted the right to navigate the middle and lower Danube. See also the Treaty of Kucuk Kyanarca, concluded in 1774 between Russia and Turkey, and other such treaties.

3. See, for example, the upstream/downstream problems encountered in the Case of the Danube River http://www.internationalwaterlaw. org/bibliography/IJGEI/06ijgenvl2001v1n 34fuyane.pdf

M. Banskota, Upstream Perspectives on River Basin Management in the Himalayas; R.W. Johnson, The Colorado River. History and Contemporary Issues of a Complex System; L. Kardoss, Management of International River Basins; W. Li, Basin Management of the Yellow River; T. Okazumi, River Basin Management in Tsurumi River, Japan; R. Gaal Vadas, The São Francisco River Basin; A. Carmo Vaz, Problems in the Management of International River Basins – The Case of the Incomati.

4. The Legal Response to International Water Scarcity and Water Conflicts by Dr Patricia Wouters. Water Law and Policy Programme, CEPMLP, University of Dundee, Scotland, Website: http:/www.dundee.ac.uk/cepmlp/waterlaw

5. ‘Water’ had become subsumed by the ‘environment’, losing its relatively distinctive status as a separate area of global concern under the broader global environmental agenda that emerged in the 1970s, appearing most prominently at the 1972 UN Stockholm Conference.

6. Chattrapati Singh, International Water Law Series. Water Project Series, Indian Law Institute, 1995; Also published in UK by Sweet and Maxwell Ltd., London.

7. The doctrine of limited territorial sovereignty is based on the assertion that every state is free to use shared rivers flowing through its territory as long as such utilization does not prejudice the rights and interests of the co-riparians. In this case, sovereignty over shared water is relative and qualified. The co-riparians have reciprocal rights and duties in the utilization of the waters of their international watercourse and each is entitled to an equitable share of its benefits. This theory is also known as the ‘theory of sovereign equality and territorial integrity.’

8. Giordano and Wolf, 2003, p. 167; Rahaman, 2009.

9. While the original text of the UNWC, 1997 and Helsinki Rules, 1966 and a number of other international convetions and treaties have been referred to, this section is largely based on the work of M.M. Rahman, Principles of Trans-boundary Water Resources Management and Ganges Treaties: An Analysis. Going by the rules of interpretation of an international treaty, the author, however, does not feel the need to reinterpret the principles of international law as the interpretation provided in the work by M.M. Rahman is consistent with the author’s interpretation of the illustrated principles. The objective of this section is therefore not to reproduce the text but to apprise the reader with the context.

10. Schroeder-Wildberg, 2002, p. 14.

11. Articles 4-7, the Mekong River Basin Agreement, 1995.

12. Article 2, the SADC Protocol, 1995.

13. Articles 7-9, the Sava River Basin Agreement, 2002.

14. Article V of the Helsinki Rules, 1966 and Article 6 of the UN Watercourses Convention, 1997.

15. Birnie and Boyle, 2002, p. 302.

16. Eckstein, 2002, pp. 82–83, as quoted in Water Resources Development, Vol. 25, No. 1, 159-173, March 2009; Principles of Trans-boundary Water Resources Management and Ganges Treaties: An Analysis.

17. Ibid.

18. Birnie and Boyle, 2002, p. 322.

19. Articles XXIX, XXXI.

20. Articles VI-VIII.

21. Article 5.

22. Paragraphs 4 and 5 of Article 2, Article 5.

23. Articles 24 and 30.

24. Articles 3 and 4.

25. Article XXVII.

26. Paragraph 1, Article 33.

27. Article IX, Annexure F and Annexure G.

28. Article 7.

29. Articles 34 and 35.

30. Articles 22-24.

31. Bridges Over Water: The Ganges Basin with focus on India and Bangladesh. 10 July 2007.

32. Opportunities for Transboundary Water Sharing in the Ganges, the Brahmaputra, and the Meghna Basins. Mashfiqus Salehin, M. Shah Alam Khan, Anjal Prakash and Chanda Gurung Goodrich, India Infrastructure Report 2011. Water: Policy and Performance for Sustainable Development. Oxford University Press, Delhi, 2012. Available on http://canada-india business.ca/wp-content/uploads/2013/04/India-Infrastructure- Report-2011-IDFC.pdf

33. Ibid.

34. Ibid.

35. Article 1.

36. Article 2.

37. Article 3.

38. Uprety and Salman, 1999, p. 313 as quoted in ‘Principles of Transboundary Water Resources Management and Ganges Treaties: An Analysis’, Water Resources Development, Vol. 25, No. 1, 159-173, March 2009.

39. Article 12, paragraph 2.

40. Article 9.

41. Article 9(1).

42. Paragraphs 2 to 6 of Article 9.

43. Articles 9(2) and 9(4).

44. Article 9(3).

45. Article 9(1).

46. Articles 7 and 8.

47. Article 7.

48. Salman and Uprety, 2002, p. 108 in. M.M. Rahman. ‘Principles of Transboundary Water Resources Management and Ganges Treaties: An Analysis’, Water Resources Development 25(1), March 2009, 159-173.

49. Article 6.

50. Adopted in Articles 9(1), 8 and 7.

51. Article 11.

52. Article 11(2).

53. Article 11(3).

54. Article 11(4).

55. Giordano and Wolf, 2003 in the, Working Paper Series, Natural Resources Forum, United Nations, Blackwell Publishing, Oxford, UK, point out that incorporating clear mechanisms for dispute resolution is a precondition for effective long-term basin management. In many river basins, a lack of detailed conflict resolution mechanisms makes the treaty ineffective.

56. Articles IV to VII.

57. Article IV.

58. Article VI.

59. Article VII.

60. Article VIII.

61. Uprety and Salman, 1999, p. 342, as quoted in M.M. Rahman. Water Resources Development 25(1), 159-173, March 2009.

62. Ibid.

63. Article VI.

64. McGregor, 2000, as quoted in M.M. Rahman, Water Resources Development 25(1), March 2009, pp. 159-173.

65. Uprety and Salman, 1999, pp. 336-338.

66. In 1970, the United Nations (UN) General Assembly commissioned the International Law Commission (ILC) to draft a set of Articles to govern non-navigational uses of trans-boundary waters. After 21 years of extensive work, in 1991 the ILC prepared the draft text of the UN Watercourses Convention (Biswas, 1999, p. 438). Many discussions were held during 1991 to 1997 on the draft prepared by the ILC.

67. According to Article 36(1) of the Convention, 35 instruments of ratification, approval, acceptance or accession are required to bring the Convention into force.

68. Chimni, 2005, pp. 99-101; as quoted in ‘Principles of Transboundary Water Resources Management and Ganges Treaties: An Analysis’, Water Resources Development 25(1), March 2009, pp. 159-173.

69. M.M. Rahman, Water Resources Development 25(1), March 2009, pp. 159-173.

70. See Water Framework Law of the Planning Commission of India, 2012 and Ministry of Water Resources, Government of India, 2013.

 

References:

The Legal Response to International Water Scarcity and Water Conflicts: Patricia Wouters, Director, Water Law and Policy Programme, CEPMLP, University of Dundee, Scotland, DD1 4HN, Website: http:/www. dundee.ac.uk/cepmlp/waterlaw

United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700 (not yet entered into force).

Report of the Secretary General, Commission on Sustainable Development, Comprehensive Assessment of the Freshwater Resources of the world, UN Doc. E/CN.17/1997/9, 4 February 1997 < gopher://gopher.un.org:70/00/esc/cn17/1997/off/97—9.EN >; See the World Water vision < http://www.watervision.org/ >; H.L.F. Saeijs and J.M. van Berkel, The Global Water Crisis: The Major Issue of the Twenty-first Century: A Growing and Explosive Problem, in, E.H.P. Brans, E. J. de Haan, A. Nollkaemper and J. Rinzema (eds.), The Scarcity of Water: Emerging Legal and Policy Responses. 1997. Working Paper by A.T. Wolf, ‘Criteria for Equitable Allocations: The Heart of International Water Conflict’, Natural Resources Forum, vol. 23, 1999. Also on http://www.transboundarywaters. orst. edu/publications/allocations/

Annual Digest of Public International Law Cases 1927-1928, 128-133: Württemberg and Prussia v. Baden (18 June 1927), 4; 116 Entscheidungen des Reichsgerichts in Zivilsachen 1927, 18-45. Société énergie électrique du littoral méditerranéen v. Compagnia imprese elettriche liguri (1939), 9 Annual Digest of Public International Law Cases, 1938-1940, 120-123; 91 Giurisprudenza Italiana 1939-I, 518; 64 Foro Italiano 1939-I, 1036;and discussion on these decisions in Wouters.

J. Lipper, ‘Equitable Utilisation’, in A.H. Garretson, et al. (eds.), The Law of International Drainage Basins, 1967, Oceana Publications, 1 Jannuary 1968; and S. McCaffrey, ‘The Harmon Doctrine One Hundred Years Later: Buried, Not Praised’, Natural Resources Journal 36, 1996, H.A. Smith, The Economic Uses of International Rivers. P. S. King & Son, 1931.

GA. Res. 2669 (XXV) 1970.

The Work of the UN International Law Commission; Volume II: Reports of the Special Rapportuers to the UN International Law Commission, 2000.

Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, UN Doc. A/CONF.48/14 and Corr.1 (1972), reprinted at 11 ILM 1416.

Rio Declaration on Environment and Development, 13 June 1972, UN Doc. A/CONF.151/5/Rev.1 (1992), reprinted at 31 ILM 876; Agenda 21,16 June 1992, UN Doc. A/CONF.151/26 (1992).

< http://www.dundee.ac.uk/cepmlp/water/html/dublin_statement.htm >.

The World Water Vision (note 6); also the Framework for Action of the Global Water Partnership.

< http://www.hrwallingford.co.uk/projects/gwp.fau/ffa.html >, and ‘Building the Frameworks for Action’ (July 1999), at <http://www.hrwallingford.co.uk/projects/gwp.fau/documents/building.pdf>; See also the World Water Council < http://www.worldwater council.org/ >

M. Falkenmark, ‘Water Scarcity: Challenges for the Future’, in E.H.P. Brans, et al. J. A. Allan, Israel and Water in the Framework of the Arab-Israeli Conflict. Lynne Rienner Publishers, 1999.

Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, 5 April 1995, 34 ILM 864 (Cambodia, Laos, Thailand and Vietnam).

S. Salman and K. Uptrey, ‘Hydro-politics in South Asia: A Comparative Analysis of the Makahali and the Ganges Treaties’, Natural Resources Journal 39, 1999.

EU Water Framework Directive.

UN/ECE Helsinki Convention.

Convention Concerning the Regime of Navigation on the Danube, 18 August 1948.

M.M. Rahman, ‘Principles of Transboundary Water Resources Management and Ganges Treaties: An Analysis,’ Water Resources Development 25(1), 159-173, March 2009.

Mashfiqus Salehin, M. Shah Alam Khan, Anjal Prakash, and Chanda Gurung Goodrich, Opportunities for Trans-boundary Water Sharing in the Ganges, the Brahmaputra, and the Meghna Basins. India Infrastructure Report, 2011. Water: Policy and Performance for Sustainable Development Published in India by Oxford University Press, Delhi. Available on http://canada-india business.ca/wp-content/uploads/2013/04/India-Infrastructure-Report-2011-IDFC.pdf

M.M. Rahman, The Ganges Water Conflict, An analysis. International Water Law Project, Asteriskos, 2006.