Abstract
Conflicts over shared rivers between various stakeholders usually arise because of the depletion of water flows due to diverse factors and circumstances broadly classified as (a) geographic, hydrographic, hydrological , climatic, ecological and other factors of natural character; (b) the socio-economic needs of the population ; (c) the quantum of population dependent upon the river; (d) the effects of the use or uses of the river by one stakeholder on another; (e) existing and potential uses of the river; (f) conservation , protection, development and economy of use of the river waters and the costs of measures taken to that effect; and (g) availability of alternatives, of comparable value, to a planned or existing use of the river.
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- 1.
For the categorization of these factors and circumstances, see Article 6 of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, United Nations General Assembly, A/RES/51/229, July 8, 1997.
- 2.
Ibid. See Article 5, which imposes on the States (as stakeholders) not only to develop and protect the rivers, but also requires them to cooperate with other States in the protection and development of the rivers.
- 3.
It is estimated that of all the water on earth, only 2.5% is fresh water and 1% is easily available for human use. Despite the complexity of the problems, the last 50 years have seen only 37 acute disputes involving violence, compared to 150 treaties that have been signed. The focus of negotiation and treaty-making in the last century has shifted away from navigation towards the use, development, protection and conservation of water resources. For details on Transboundary Water Issues in the context of International Decade for Action “Water for Life” 2005–2015 and other relevant articles and literature, see www.un.Org/waterforlifedecade/transboundary_waters.shtml. Accessed on 20 December 2015. Also see Food and Agriculture Organization of the United Nations, “Land and Water.” Available at http://www.fao.org/land-water/en/. Accessed on 20 December 2015.
- 4.
Some of the major cases decided by the US Supreme Court are Kansas v. Colorado (1907)—this was about diversions from Arkansas River in Colorado that deprived Kansas of water; Wyomingv. Colorado (1922) wherein Wyoming brought proceedings against Colorado for diverting water from the Laramie River; Connecticut v. Massachusetts (1931) this was about the diversion of the waters of the Connecticut River, as well as the Ware and Swift Rivers, by Massachusetts; New Jersey v. New York (1931) about New York diverting waters of the Delaware River and its tributaries; Nebraska v. Wyoming (1945) about the equitable apportionment of the North Platte River. For an account of brief discussion on these cases see Stephen C. McCaffrey, The Law of International Watercourses, (Oxford University Press: New York, 2001) pp. 221–228. A brief summary of some of these cases has been incorporated in the next section on the Indian Context.
- 5.
The Ganges rises in the Himalayas and flows through India and Bangladesh. In Bangladesh it joins the Brahmaputra and is called as Padma. Later, it empties into Bay of Bengal forming a huge delta area. The Ganges and Brahmaputra-Meghna (GBM) drainage basin has a combined area of about 1,600,000 km2. This combined basin area spreads across Bangladesh, Bhutan, India, Nepal and China. The Indus rises in Tibet and flows through India and Pakistan. It has a length of about 3,200 km. See Stephen C. McCaffrey, The Law of International Watercourses, (Oxford University Press: New York,, 2001) p. 248; also see B.S. Chimni, “A Tale of Two Treaties: The Ganga and Mahakali Agreements and the Watercourse Convention” in Surya P. Subedi, (Ed.) International Watercourses Law for the 21st Century: The case of the River Ganges Basin (Ashgate Publishing Limited: Oxon, 2005) p. 64.
- 6.
For an historical account of these issues, specifically with regard to the Indus see N.D Gulati, IndusWaterTreaty: An Exercise in International Mediation (Allied Publishers: Bombay,1973); and A.A. Michel, The Indus Rivers: A Study of the Effects of Partition (Yale University Press: New Haven, 1967).
- 7.
The population dependent on the entire Ganges basin is approximately 300 million (of which 10 million are in Nepal and 40 million in Bangladesh and the rest in India). Similarly, the Indus has a drainage basin of approximately 1,165,000 km2. The network canals connect a large area of the basin in Punjab area (both within India and Pakistan); see McCaffrey, n. 2, p. 248.
- 8.
It has been pointed out “The law of international watercourses has developed in tandem with the evolution of human social organization and the intensification of use by human societies of freshwater…It is well known that rivers nourished the great ancient civilizations and drove their economies…But even before the rise of these civilizations evidence of early canals and dikes suggests that small communities had found it necessary to cooperate in order to control and utilize effectively of major rivers”. See McCaffrey, n. 1. p. 58.
- 9.
For the text of the treaty see http://wrmin.nic.in/writereaddata/Inter-StateWaterDisputes/Volume-I1920752696.pdf and also http://www.worldbank.org/en/region/sar/brief/fact-sheet-the-indus-waters-treaty-1960-and-the-world-bank. Accessed on 5 January 2013.
- 10.
For the text of the treaty see http://internationalwaterlaw.org/documents/. Accessed on 5 January 2013.
- 11.
For the text of the treaty see http://africanwater.org/farakka_water_treaty.htm. Accessed on 5 January 2013.
- 12.
In March 2010, at their 37th Ministerial level Joint River Commission meeting, India and Bangladesh finalised the decision to sign the Teesta River Agreement. Drafts were exchanged between the two countries and the agreement was supposed to be signed in September 2011 during the visit of the Indian Prime Minister Manmohan Singh. That did not happen due to domestic political reasons within India. The Teesta River enters Bangladesh near Nilphamari district and flows 45 km through the agri-dominated districts of Rangpur, Lalmonirhat, and Gaibandha before meeting the Brahmaputra River in Kurigram. The Teesta River barrage at Gozaldoba in India regulates the amount of water flow downstream to Bangladesh. In order to increase the irrigation potential of the northwest region, Bangladesh constructed the Dalia barrage on the Teesta River in Lalmonirhat district to provide irrigation water from the river. The Teesta river flows from Sikkim, and cascades through North Bengal, before entering Bangladesh. The West Bengal Government had agreed on sharing of up to 25,000 cusecs of water, but the final version of the agreement aimed at sharing 33,000–50,000 cusecs, which would hurt the interests of West Bengal. The other argument is that the Teesta’s lean season water flow has not been jointly studied and surveyed by Indian and Bangladeshi experts. Some argue that the surface and ground potential of water resources in the Brahmaputra Basin, consisting of sub-basins of the Sankosh, the Raidak, the Torsa, the Jaldhaka, and the Teesta rivers are apparently sufficient to meet the requirements of West Bengal and Bangladesh.
- 13.
Generally on the domestic legal frameworks within the South Asian context see R. Ramaswamy Iyer (Ed.), Water and Laws in India, (New Delhi: Sage Publications, 2009); Tushar Shah, Taming the Anarchy: Groundwater Governance in South Asia, (New Delhi: Routledge, 2009); Kishor Uprety and Salman M. A. Salman, “Legal Aspects of Sharing and Management of Transboundary Waters in South Asia: Preventing Conflicts and Promoting Cooperation”, (2011), Hydrological Sciences Journal, Vol. 56 (4) pp. 641–661; Gopal Siwakoti, “Transboundary River Basins in South Asia: Options for Conflict Resolution”. Available at https://www.internationalrivers.org/sites/default/files/attached-files/transboundaryriverbasins.pdf. Accessed on December 20, 2015; Shanta Mohan, Sailen Routray, and N. Shashikumar (Eds.), River Water Sharing: Transboundary Conflict and Cooperation in India, (New Delhi: Routledge, 2010).
- 14.
Both India and Pakistan provide separate provisions for conflict resolution for such disputes by excluding any jurisdiction for the Courts. Article 262 of the Indian Constitution seeks to provide for a separate law to adjudicate “any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State or river valley.” Pakistan provides in Article 155 of its Constitution that any complaint with respect to the use and distribution or control of water by the Federal Government or the Provincial Government should be handled by a Council in which Prime Minister and Chief Ministers of all the Provinces are members. It also excludes jurisdiction of any Court in these matters.
- 15.
Article 48-A is in Part IV (Directive Principles of State Policy) of the Constitution of India, which is unlike Part III (Fundamental Rights) is non-justiciable. Article 37 of the Indian Constitution provides that the provisions contained in Part IV are not to be enforceable by any court, “but principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”.
- 16.
These agencies include both governmental and community-based agencies. Governmental agencies usually undertake regulatory functions, the community-based agencies seek to supplement and implement these regulatory and policy framework at the grassroots. For detailed account on this see V. K. Nanayakkara, “Sri Lanka’s Water Policy: Themes and Uses”. Available at http://publications.iwmi.org/pdf/H042809.pdf. Accessed on December 20, 2015.
- 17.
Article 51 of the Nepalese Constitution is titled as “State Policies” and deals with various national policy aspects relating to important areas, which interalia, also include in clause (g) policies regarding the conservation, management, and use of natural resources.
- 18.
Article 5(5) of the Bhutanese Constitution provides “Parliament may, by law, declare any part of the country to be a National Park, Wild Life Reserve, Nature Reserve, Protected Forest, Biosphere Reserve, Critical Watershed and such other categories meriting protection.”
- 19.
Afghanistan seems to be the only exception, as it does not have any specific or remotely connected provision on water or environment related issues.
- 20.
For the text of the National Water Policy of Bangladesh, 1999, which remains part of the Water Act see http://mowr.portal.gov.bd/sites/default/files/files/mowr.portal.gov.bd/files/32e67290_f24e_4407_9381_166357695653/National%20Water%20Policy%20(English).pdf. Accessed on December 20, 2015. For the draft National Water Policy of Pakistan, 2004, see https://www.waterinfo.net.pk/sites/default/files/knowledge/National%20Water%20Policy%20%28Draft%29.PDF; also see for a detailed account on Pakistan Water Policy, Politics and Management, Medha Bisht, Water Sector in Pakistan: Policy, Politics, Management” IDSA Monograph Series, No. 18, April 2013. Available at http://www.idsa.in/system/files/Monograph18.pdf. Accessed on 20 December 2015. For the text of the National Water Policy of India, 2012 outlining the various aspects of the water use and management, see http://wrmin.nic.in/writereaddata/NationalWaterPolicy/NWP2012Eng6495132651.pdf. Accessed on December 20, 2015. For the text of the National Water Plan of Nepal, 2002, see http://www.moen.gov.np/pdf_files/national_water_plan.pdf. Accessed on December 20, 2015.
- 21.
Foreword written by the Prime Minister of Bangladesh to the National Water Policy of Bangladesh adopted in 1999 and these words remain valid even to this day. See National Water Policy of Bangladesh, 1999. Available at http://mowr.portal.gov.bd/sites/default/files/files/mowr.portal.gov.bd/files/32e67290_f24e_4407_9381_166357695653/National%20Water%20Policy%20(English).pdf. Accessed on December 20, 2015.
- 22.
Ibid.
- 23.
Ibid. The National Water Policy of Bangladesh, therefore, contends, “It may take considerable effort and time for Bangladesh to work out joint plans for different river basins with other co-riparian countries. As a long-term measure, therefore, it is the policy of the government to undertake essential steps for realising basin-wide planning for development of the resources of the rivers entering its borders.”
- 24.
According to Section 4 of the Bangladesh Water Act, 2013, the Council, besides the Prime Minister, includes the Ministers of Finance, Agriculture, Planning, Local Government, Rural Development and Cooperatives, Law and Justice, Land Water Resources, Foreign Affairs, Fisheries, Shipping, and Environment and Forests. The range of membership in the Water Resources Council shows the importance attached by the concerned countries of South Asia to the Water Resource-related issues.
- 25.
Article 153 of the Constitution of Pakistan.
- 26.
Article 155 of the Constitution of Pakistan outlines the provisions to deal with the complaints relating to water supplies. It, interalia, provides, “(1) If the interests of a Province, the Federal Capital, or the Federally Administered Tribal Areas, or any of the inhabitants thereof, in water from any natural source of supply (or reservoir—inserted in 2010) have been or are likely to be affected prejudicially by (a) any executive act or legislation taken or passed or proposed to be taken or passed or; (b) the failure of any authority to exercise any of its powers with respect to the use and distribution or control of water from that source; the Federal Government or the Provincial Government concerned may make a complaint in writing to the Council. (2) Upon receiving such complaints, the Council shall, after having considered the matter, either give its decision or request the President to appoint a Commission consisting of such persons having special knowledge and experience in irrigation, engineering, administration, finance, or law as he may think fit, hereinafter referred to as the Commission. (3) Until [the Majlis-e-Shoora (Parliament)] makes provision by law in this behalf, the provisions of Pakistan Commissions of Inquiry Act, 1956, as in force immediately before the commencing day shall apply to the Council or the Commission as if the Council or the Commission were a Commission appointed under that Act to which all the provisions of section 5 thereof applied and upon which the powers contemplated by section 10A thereof had been conferred. (4) After considering the report and supplementary report, if any, of the Commission, the Council shall record its decision on all matters referred to the Commission. (5) Notwithstanding any law to the contrary but subject to the provisions of clause (5) of Article 154, it shall be the duty of the Federal Government and the Provincial Government concerned in the matter in issue to give effect to the decision of the Council faithfully according to terms and tenor. (6) No proceeding shall lie before any Court at the instance of any party to a matter which is or has been in issue before the Council or of any person whatsoever, in respect of a matter which is actually or has been or might or ought to have been a proper subject of complaint to the Council under this Article.
- 27.
For an account on interprovincial disputes that exist within Pakistan, see Ahmed Hayat Khan, “Water Sharing Dispute in Pakistan: Standpoint of Provinces”, Berkeley Journal of Social Sciences, vol. 4, Spring 2014; and Medha Bisht, Supra note 21.
- 28.
These pending disputes are—(a) the sharing of the waters of Ravi and Beas between Punjab, Haryana and Rajasthan. Earlier in 1981 an agreement regarding sharing of the waters had been concluded between the Chief Ministers of these States. However, in 2004 Punjab enacted the Punjab Termination of Agreements Act, 2004 terminating all earlier agreements including the 1981 agreement fully discharging Government of Punjab of any obligation arising from the agreements. A Presidential Reference regarding this Act has been pending under Article 143 of the Constitution: (b) the sharing of the waters of Vansadhara river between Orissa and Andhra Pradesh. Orissa made a complaint in February 2006 to the Central Government against Andhra Pradesh for constructing a flood flow canal and thereby affecting the use, distribution and control of waters of the river. The basic contention of the State of Orissa in the complaint is that the flood flow canal would result in drying up of the existing river bed and consequent shifting of the river affecting ground water table; (c) the sharing of the waters of Mandovi River for which a complaint was made by Goa in July 2002 against Maharashtra and Karnataka. Goa is demanding assessment of available utilisable water resources in the basin at various points and allocation of this water to the three basin States keeping in view priority of the use of water within basin as also to decide the machinery to implement the decision of the tribunal; (d) the sharing of the waters of Krishna River between Karnataka, Maharashtra, and Andhra Pradesh. The Krishna Water Dispute Tribunal has already submitted its report and it has been notified by the Government of India in 2010. See http://wrmin.nic.in/writereaddata/Inter-StateWaterDisputes/KWDTReport9718468760.pdf. Accessed on December 20, 2015. The Implementation Board has been functioning; (e) the sharing of the waters of Cauvery between Karnataka and Tamil Nadu. The Cauvery Water Disputes Tribunal was constituted in June 1990 itself and it had submitted its final report in 2007. At present, monitoring of the implementation of the orders of Cauvery Tribunals is in question under the Cauvery River Authority and Cauvery Monitoring Authority. For details about the recent status of these cases see http://wrmin.nic.in/forms/list.aspx?lid=384&Id=4. Accessed on December 20, 2015.
- 29.
Article 262 provides “(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).
- 30.
The functioning of the Tribunals constituted under the Inter-State River Water Dispute Act, 1956 is a complex affair. Some of these Tribunals have been in existence for more than a decade or two. On the working of these tribunals and a personal account of working with them See Fali S. Nariman, “Inter-State Water Dispute: A Nightmare” in Ramaswamy R. Iyer (Ed.), Water and the Laws in India (Sage Publications: New Delhi, 2009) p. 32. Also see Radha D’Souza, “Nation vs. Peoples: Inter-State Water Dispute in India’s Supreme Court” in the above book edited by Ramaswamy R. Iyer on p. 58.
- 31.
The Narmada Water Disputes Tribunal (October 1969) dealt with the sharing of Narmada Waters and Narmada River Valley Development (between Gujarat, Madhya Pradesh, Maharashtra and Rajasthan. The award was given on 7 December 1979. http://wrmin.nic.in/forms/list.aspx?lid=384&Id=4, Accessed on December 20, 2015; The Godavari Water Disputes Tribunal, constituted in April 1969, gave its award in July 1980. https://wrd.maharashtra.gov.in/portal-cms/cmspreview?v=1.1&l=en&p=/default/mwrd/homepage/new/godavari.html, Accessed on 20 December 2015; The Cauvery Water Disputes Tribunal finalised its award in 2007 and it is yet to be notified, http://wrmin.nic.in/forms/list.aspx?lid=378&Id=4, Accessed on December 20, 2015; The Krishna Water Disputes Tribunal award has been notified in 2010, http://wrmin.nic.in/writereaddata/Inter-StateWaterDisputes/KWDTReport9718468760.pdf, Accessed on December 20, 2015.
- 32.
See the Report of the Krishna Water Disputes Tribunal, p. 160.
- 33.
Ibid, pp. 167, 177, and 191.
- 34.
Ibid, p. 160.
- 35.
Ibid.
- 36.
Ibid, p. 167. The Tribunal takes note of the reference made by the State of Maharashtra to Article 5 and 6 of the United Nations Convention on Non-Navigational Uses of International Watercourses, 1997.
- 37.
Ibid.
- 38.
Ibid. The Tribunal referring to the historical aspects, points out: “From records it shall appear that dispute about sharing of the water of river Cauvery is more than one and a half century old, details whereof have already been mentioned in earlier volumes. Before the Cauvery Fact Finding Committee, in the year 1972, claims had been made by different riparian States for 1,260.34 TMC (Ref: TNDC Vol. XV, page 110), whereas the aforesaid Committee as well as this Tribunal on consideration of different material adduced before this Tribunal have estimated the average yield at 50% dependability to be at 740 TMC”.
- 39.
Ibid. On the issue of “prescriptive rights”, the Tribunal noted the arguments of Tamil Nadu that being the lower riparian State it “…has a right of prior appropriation of the waters of the river Cauvery even in a proceeding relating to the apportionment of the waters of the said river.” Tamil Nadu also referred to the Indus Commission of the year 1942 in which the Commission had pointed out that “priority of appropriation gives superiority of right; in general interest of the entire community inhabiting dry and arid territories; priority may usually have to be given to an earlier irrigation project over a later one.” Tamil Nadu, quoting 1942 Indus Commission Report, noted that “the common law rule of riparian rights is completely destructive of equitable apportionment, for, under that rule, the upper owner can hardly take any share-far less his fair share-of the water of the river for purposes of irrigation. Therefore, that rule cannot be applied to an inter-State dispute even where it is recognized by both the States in their own internal disputes. The doctrine of appropriation, on the other hand, is consistent with equitable apportionment, provided that the prior appropriator is not allowed to exceed reasonable requirements. This condition is in fact part of the doctrine as enunciated by the Court in Wyoming v. Colorado [1922] (259 U.S. 419, 459) and again in Arizona v. California [1936] (298 U.S. 558, 566). Moreover, this doctrine is dictated by considerations of public interest; in arid territories where irrigation is a prime need, there would be no incentive for any individual or State to spend money upon an irrigation project, unless there was some assurance that it would not be ruined by subsequent diversion higher up the river. Where, therefore, both the States in an inter-State dispute recognize the doctrine of appropriation within their own borders, the most equitable course to apply that same doctrine to the determination of the dispute.
- 40.
The Report Cauvery Water Dispute Tribunal with the Decision In the Matter of Water Disputes regarding the Inter-State River Cauvery and River Valley thereof. See http://wrmin.nic.in/forms/list.aspx?lid=378&Id=4, Accessed on December 20, 2015.
- 41.
Ibid.
- 42.
Ibid. The Tribunal in its report noted that this was done in the US to help arid States to get enough water.
- 43.
Ibid. David H. Getches, Water Law in a Nutshell (3rd ed.), (University of Colorado School of Law: Boulder, Colorado, 1997).
- 44.
Ibid.
- 45.
Ibid. The Tribunal also referred to the views expressed in the Krishna Water Disputes Tribunal in Chapter XII (p. 98)—Existing use of a State is important evidence of its needs. Demands for potential uses are capable of indefinite expansion. Equitable apportionment can take into account only such requirements for prospective uses as are reasonable having regard to the available supply and the needs of the other States.
- 46.
Ibid. The Tribunal also refers to the views expressed by other tribunals such as Godavari Tribunal and Ravi Beas Waters Tribunal about the equitable apportionment of waters. From the Report of the Godavari Water Disputes Tribunal, in respect of the law of equitable apportionment, it has been observed at page 19 of Chapter IV: “In the absence of legislation, agreement, award or decree, the Tribunal has to decide the dispute in such a way as will recognize the equal rights of the contending States and at the same time establish justice between them. Equal right does not mean an equal division of the water. It means an equitable apportionment of the benefits of the river, each unit getting a fair share.” In the Report of The Ravi Beas Waters Tribunal, in respect of claims of riparian States of an inter-State river it has been observed at page 94: “There is another reason which also militates against the view of the State owning proprietary rights in river waters. Even in ancient times flowing water was assimilated to the air and the sea. As a commodity it was common to all. A river was res publica iure gentium, open to navigation and fishing to all citizens. It was only feudal Lords who perhaps claimed absolute property rights over that part of the stream which crossed their territories. There is nothing in law for any one including the State to claim absolute proprietary rights in river waters. Running water has, therefore, rightly been called “a negative community” as it belongs to no one and is not susceptible to absolute ownership rights. The only right which a State can legitimately claim in river waters flowing within its territory is the right to make use thereof provided such use does not affect adversely the right which another State has to make use of the said waters.”
- 47.
The Tribunal refers to and discusses various decisions of the US Supreme Court spread over a century. In fact, it enters into a jurisprudential analysis of the US Supreme Court decisions. Some of these need mention in order to understand the working of the Tribunal basing its interpretative matrix on international and domestic decisions, especially within the US. These cases are: Kansas vs. Colorado (1906) and Colorado vs. Kansas (1943) where the US Supreme Court stated “The lower State is not entitled to have the stream flow as it would in nature regardless of need or use. If, then, the upper State is devoting the water to a beneficial use, the question to be decided, in the light of existing conditions in both States, is whether, and to what extent, her action injures the lower State and her citizens by depriving them of a like, or an equally valuable, beneficial use.” In New Jersey vs. State of New York (283U.S.336) decided in 1931, the Court noted, “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. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may be. The different traditions and practices in different parts of the country may lead to varying results but the effort always is to secure an equitable apportionment without quibbling over formulas…” In State of Connecticut vs. Commonwealth of Massachusetts {282 U.S.660} (1931) it was said: “For the decision of suits between States, federal, States and international law is considered and applied by this court as the exigencies of the particular case may require. The determination of the relative rights of contending States in respect of the use of streams flowing through them does not depend upon the same considerations and is not governed by the same rules of law that are applied in such States for the solution of similar questions of private right. The same question was considered in State of Colorado vs. State of New Mexico, by the US Supreme Court (1982). Justice Marshal who delivered the opinion on behalf of the Court said: “In addition, we have held that in an equitable apportionment of inter-state waters it is proper to weigh the harms and benefits to competing States. In Kansas v Colorado, where we first announced the doctrine of equitable apportionment, we found that users in Kansas were injured by Colorado’s upstream diversions from the Arkansas River. Yet we declined to grant any relief to Kansas on the ground that the great benefit to Colorado outweighed the detriment to Kansas. Similarly, in Nebraska v. Wyoming, we held that water rights in Wyoming and Nebraska, which under State law were senior, had to yield to the “countervailing equities” of an established economy in Colorado even though it was based on junior appropriations. We noted that the rule of priority should not be strictly applied where it “would work more hardship” on the junior user “than it would bestow benefits” on the senior user. The same principle is in balancing the benefits of a diversion for proposed uses against the possible harms to existing uses”.
- 48.
United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997 (“UN Convention” hereinafter) specifically refers to the term “equitable and reasonable utilization” in the context of use. Article 5 of this Convention, interalia, provides that “…In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits there from, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse”. Article V of The Helsinki Rules on the Uses of the Waters of International Rivers (“Helsinki Rules” hereinafter) adopted by the International Law Association in 1966 refers inter alia to the term “reasonable and equitable share” and past utilization (including in particular existing utilization), comparative costs of alternative means of satisfying the economic and social needs and avoidance of unnecessary waste. See Report of the Fifty-Second Conference, International Law Association, Helsinki, 1966, p. 484.
- 49.
The UN Convention is specific to ‘non-navigational’ uses of the rivers. Chapter 4 of the Helsinki Rules addresses the ‘navigational’ uses of the rivers and lakes which extend to two or more States. It further provides for the “free navigation on the entire course of a river or lake” which, however, is subject to the exclusive jurisdiction of the riparian State.
- 50.
The Helsinki Rules were adopted by the International Law Association (ILA) in 1966. It, in fact, was an attempt to codify and existing international legal rules on the sharing of international rivers among States. Considering the status of ILA (as a body of lawyers and legal experts drawn from various parts of the globe and regarded essentially as a non-governmental body), the Helsinki Rules were regarded as having a less binding effect on States and had persuasive value under international law. The UN Convention, on the other hand, had been negotiated and finalized by the States perse. It was adopted in 1997 after a prolonged codification process undertaken by the International Law Commission (ILC) since 1974. The ILC took up this issue for consideration in 1974 pursuant to resolution 2669 (XXV) adopted by the UN General Assembly on 8 December 1970 on “Progressive Development and Codification of the Rules of International Law Relating to International Watercourses”. The UN General Assembly had adopted resolution 1401 (XXIV) on 21 November 1959 pointing out that it was “desirable to initiate preliminary studies on the legal problems relating to the utilization and use of international rivers with a view to determining whether the subject is appropriate for codification”. This codification process initiated by the UN finally resulted in the adoption of UN Convention on 21 May 1997. The UN Convention has come into force as on 17 August 2014. No South Asian country is a party to this Convention. See https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-12&chapter=27&clang=_en. Accessed on 23 December 2015.
- 51.
The International Law Association, Report of the Fifty-Second Session Conference, n. 12, pp. 484–532. Also see a discussion on this issue in Surya P. Subedi, “Regulation of Shared Water Resources in International Law: The Challenges of Balancing Competing Demands” in Surya P. Subedi (Ed.) International Watercourses Law for the 21st Century, n. 2, pp. 7–18. Subedi points out “However, there are a number of areas around the world where the existing bilateral or multilateral agreements have not been able to provide satisfactory solutions to the problems faced by the watercourse States of the region”.
- 52.
Article 10 of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997 seeks to define the “Relationship between different kinds of uses” and it further provides in clause (2) that “In the event of a conflict between uses of an international watercourses, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs”. For the text of the 1997 UN Convention see https://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XXVII/XXVII-12.en.pdf, Accessed on 23 December 2015.
- 53.
Article 3 of the UN Convention refers to the Water Course Agreements and explicitly recognizes the rights of the States to conclude such agreements. However, it requires States to “consider harmonizing such agreements with the basic principles of the present Convention”.
- 54.
Stephen C. McCaffrey, The Law of International Watercourses: Non-Navigational Uses (Oxford University Press: New York: 2001) p. 8.
- 55.
Ibid, The river basin approach seeks to strike a balance between the existing natural functions of the river system and societal expectations for livelihood, industry, recreation, nature management and agriculture. For a brief account on this aspect generally see http://documents.Worldbank.org/curated/en/965371468340137430/pdf/411500Intro0to1mgmt0NOTE1101PUBLIC1.pdf, Accessed on 23 December 2015.
- 56.
Ibid, p. 112. McCaffrey lists four principal theories relating to the non-navigational uses of the international watercourses: absolute territorial sovereignty, absolute territorial integrity, limited territorial sovereignty, and community of interests. Absolute territorial sovereignty principle emanated from the Harmon Doctrine wherein a State had the complete freedom to decide the use of the portion of its international river.
- 57.
The Harmon Doctrine, inter alia, provides that “a State has complete freedom of action with regard to the portion of an international watercourse that is situated within its territory, irrespective of any harmful consequences that may ensue for other riparian States.” The length of the Rio Grande River is about 3,000 km and half of this length forms the boundary between the United States and Mexico. It is also important to note that preceding this 1895 legal opinion by the U. S. Attorney General, Harmon both the contending States entered into a prolonged negotiations about the flow of water for nearly five years. Even the US Congress had agreed in 1890 through a resolution that upstream diversions from Rio Grande were depriving those on the Mexican side of water. Both the houses of Congress had requested the US President to enter into negotiations with Mexico with a view to resolving the Rio Grande water problems. Mexico had also referred to “the principles of international law” and argued they “would form a sufficient basis for the rights of the Mexican inhabitants on the bank of the Rio Grande”. Mexico, further referred to, Article VII of the 1848 Treaty of Guadalupe Hidalgo according to which both the countries had an obligation not to construct any work without the consent of the other that may impede or interrupt, in whole or in part, the flow of the water in the river. Harmon’s legal opinion sought to nullify these arguments by stating that treaty provisions do not directly address private citizens and that it only applies to governments. These issues also brought into focus the domestic implementation of international law and treaties within the U.S. Later, the U.S. Government in a case before the Supreme Court (United States v. Rio Grande Dam & Irrigation Co.) concerning these issues on the Rio Grande River did not concur with the legal opinion given by the Attorney General Harmon. For a detailed account on this issue see McCaffrey, supra n. 55, pp. 76–111.
- 58.
Ibid. According to McCaffrey “A historical survey of the views of commentators shows that while there was some support for the theory of absolute territorial sovereignty in the nineteenth century and even in earlier in decades of twentieth century, it declined sharply as the significance of non-navigational uses increased”.
- 59.
The Indian team that was negotiating the Indus Treaty with Pakistan in the decade of 1950s visited various parts of the United States several times to understand the legal and technical aspects of the river sharing arrangements. See Gulati, n. 7, p. 9. The US practice was studied and closely examined before incorporating water sharing arrangements that now exist in Article 262 in the Indian Constitution. However, this procedure under the Indian Constitution has been critiqued, specifically in excluding the jurisdiction of the Supreme Court. Fali Nariman points out that “In USA, such disputes remain with the country’s Supreme Court, a procedure having been devised for appointing a Special Master to record evidence and give his findings on various uses of fact and law, and make his report to the Court; each of the contesting States then filing objections or responses to the findings in the report, and the Supreme Court of the United States ultimately pronouncing its final verdict”. He further notes that “I believe it was an error for us to have departed from the American pattern (the US has a written Constitution like ours) to resolve inter-State river water disputes. When conceived way in the year 1956, it could perhaps have been justified as an innovative experiment-but the experiment has been a failure” (Fali Nariman, n. 31, p. 38–39). Article 33 of the UN Convention also reflects this idea. It, interalia, provides for the settlement of disputes by States through peaceful means. If they fail, “they may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them or agree to submit the dispute to arbitration or to the International Court of Justice”. Article 33 also provides for Fact-finding Commissions comprising members from both parties. Article 8 of The Indus Water Treaty, 1960, for example, provides for the Permanent Indus Commission that seeks to resolve all bilateral issues through ongoing negotiation.
- 60.
See Mark Reisner, Cadillac Desert: The American West and Its Disappearing Water (Penguin 1993).
- 61.
This Treaty provides for comprehensive cooperation between the US and Canada in planning and sharing the river. Canada agreed to construct several large storage dams to benefit the US to enhance its power generation capabilities and as protection against floods. The US, on its part, agreed to provide Canada with one-half the additional power and to compensate Canada for flood-control benefits. According to McCaffrey “…while Canada had initially taken a Harmon-Doctrine-type position, based upon Article II of the 1909 treaty, in the end the two states arrived at an equitable apportionment of the benefits of the Columbia River” (McCaffrey, n. 55, p. 296).
- 62.
Besides bringing in various legal and technical principles from the US Supreme Court decisions, the idea of creation of Tennessee Valley Authority (TVA) in 1933 by the US Congress was adopted by India as well. The US Congress created TVA as a federal authority in the times of Great Depression to address wide range of environmental, economic and technological issues, including the delivery of low cost electricity and the management of the natural resources. TVA covers an area of about 80000 sq. miles and its benefits spreading over several of the states of the US; see generally on the creation and current functioning of TVA see http://www.tva.gov/. The World Bank which facilitated the negotiation of the Indus Water Treaty had proposed a similar such body on the lines of TVA between India and Pakistan. Later, India took up this TVA idea and created Damodar Valley Corporation (DVC) by an act of Central Legislature, namely Damodar Valley Corporation, 1948 (Act No. XV of 1948). It should be noted that the creation of DVC was preceded by a study prepared by W. L. Voorduin, a senior engineer of TVA in 1944. This study entitled “Preliminary Memorandum on the United Development of the Damodar River” provided the base for the creation of DVC consisting of eastern and northern Indian states; see http://www.dvcindia.org.
- 63.
Gulati, n. 3, p. 15.
- 64.
Article VIII of The Indus Water Treaty according to which Permanent Indus Commissioners for all matters arising out of the Treaty would serve as the regular channels of communication between the two Governments (unless Governments decide take up any particular question directly with each other).
- 65.
Articles 4–7 provide for the creation and working of a Joint Committee. This Committee will be responsible for implementing the arrangements contained in the Farakka Treaty and examining any difficulty arising out of the implementation of the above arrangements and of the operations of Farakka Barrage.
- 66.
Article 9 of the Treaty provides for the creation of a Mahakali River Commission, which will be “guided by the principles of equality, mutual benefit and no harm to either party”.
- 67.
The Institut de Droit International began its formal work on water sharing with its Madrid Resolution of 1911. Similarly, the Helsinki Rules were adopted in 1966. The debate within the United Nations General Assembly to codify the existing State Practice began in 1970. Later, the International Law Commission took up the work in 1974 and submitted its final draft to the General Assembly in 1994. The same was adopted by the General Assembly after prolonged discussion within the Sixth Committee during May 1997.
- 68.
The General Assembly of the United Nations debated this issue in its 25th Session in December 1970. Turkey and other countries, while noting the work done by the International Law Association and others, argued for taking up the codification of existing State practice on sharing of international watercourses. Accordingly, the UN General Assembly noted this issue in its resolution. Res. 2669 (XXV), ProgressiveDevelopmentandCodification of the Rules of International Law relating to International Watercourses, 8 December 1970. Available at https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/349/34/IMG/NR034934.pdf?OpenElement. Accessed on December 20, 2015.
- 69.
For the work of The Institut de Droit International and the three resolutions passed by it on international rivers, see www.idi-iil.org/. Accessed on December 20, 2015.
- 70.
McCaffrey, supra n. 55, pp. 318–320; Further, the work of the Droit International is summed up McCaffrey as “…a trend towards applying legal rules to the entire hydrographic basin rather than merely to the surface water channel; one in favour of increased use of procedural rules, possibly culminating in the establishment of joint management mechanisms; and a trend towards the idea that it is in the interest of all riparians that shared water resources be utilized in an equitable and reasonable manner”.
- 71.
This Arbitration was concluded in 1939. This arbitration was about the transboundary pollution—with regard to a smelter that was located within Canada in a place called Trailer; but this smelter caused damage to crops within the territory of the United States. The Arbitration, inter alia, held that “…no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein” (McCaffrey, n. 55, p. 206).
- 72.
Ibid. This arbitration was decided in 1957 between France and Spain. This was about a proposed hydro-electric power project by France and the same was opposed by Spain as it involved diversion of Lake Lanoux waters. The Arbitral Tribunal, as McCaffrey points out, inter alia referred to several principles of general international law such as (a) prohibiting the upper riparian State from altering the waters of a river in circumstances calculated to do serious injury to the lower riparian State; (b) upper riparian State in good faith to take into account the concerns of lower riparian; (c) obligation to take adverse interests into account in the course of negotiations and the obligation to give a reasonable place to such interests in the solution adopted.
- 73.
International Law Association (ILA) also took more than a decade to codify these Rules. ILA had constituted in 1954 a Committee on the Uses of Waters of International Rivers to elaborate general rules applicable to international rivers drawing on the bilateral and regional practice and experience of States.
- 74.
Article II of The Helsinki Rules on the Uses of the Waters of International Rivers, International Law Association, Report of the Fifty-Second Conference, Helsinki, 1966, p. 484.
- 75.
McCaffrey, supra n. 55, p. 320.
- 76.
Malgosia Fitzmaurice and Gerhard Loibl, “Current State of Development in the Law of International Watercourses” in Surya P. Subedi (Ed.), supra n. 6, p. 35.
- 77.
Ibid; also see Yearbook of the International Law Commission II (1983), Part One pp. 167–168.
- 78.
Article IV of the Helsinki Rules.
- 79.
Article V of the Helsinki Rules provide for all the relevant factors that could be helpful in determining the reasonable and equitable share.
- 80.
Chapter 3—Articles IX to XI.
- 81.
Chapter 6—Articles XXVI to XXXVII.
- 82.
Quoted by B. S. Chimni, “A Tale of Two Treaties: The Ganga and Mahakali Agreements”, in Surya P. Subedi (Ed.), n. 2, p. 93: It has been further pointed out that despite these kinds of ideas, the Helsinki Rules had been applied by tribunals in India in adjudicating interstate water disputes.
- 83.
McCaffrey, n. 5, p. 321; It has been noted by McCaffrey that the Judge E.J. Manner from Finland who had chaired the ILA Committee that prepared the Helsinki Rules and also as a official Finnish delegate to the UN General Assembly had proposed at the UN that the International Law Commission take up the study of the law of the non-navigational uses of international watercourses and that it consider using the Helsinki Rules as a model for its work. However, as McCaffrey points out that political considerations prevented this and this proposal was not included. Some States within the UN General Assembly were opposed to using the Helsinki Rules as a basic model for initiating the codification process.
- 84.
Convention on the Law of the Non-navigational Uses of International Watercourses, A/RES/51/229, United Nations General Assembly, 8 July 1997.
- 85.
Firstly, India argued that Article 3 (concerning rights and obligations under the existing bilateral watercourse agreements) failed to adequately reflect the principle of freedom, autonomy and the right of States to conclude international agreements on the international watercourses without being fettered by the present Framework Convention. Secondly, Article 5 (about equitable and reasonable utilization and participation) had not been drafted in clear and unambiguous terms stating the right of the State to utilize an international watercourse for non-navigational purposes in an equitable and reasonable manner. Article 33 dealing with settlement of disputes contained in it an element of compulsion in so far as it envisaged the creation of a fact-finding commission. India further noted that any procedure for peaceful settlement of disputes should leave the parties to the dispute to choose freely and by mutual consent a procedure acceptable to them. It was opposed to the imposition of any mandatory third party dispute settlement procedure on a State without its consent. India felt that Article 5 in the present form is vague and difficult to implement. Thirdly, India had objections to Article 32 as it presupposed political and economic integration among States of the region. According to India as all watercourse regions are not so integrated, this provision will be difficult to implement in certain regions. Hence, it argued for its deletion (Indian statement while abstaining from voting at the UN General Assembly on 21 May 1997—on file with the author).
- 86.
Article 2 of the 1997 UN Convention on Non-Navigational Uses of International Watercourses defines various terms in the Convention.
- 87.
Article 3, 1997 UN Convention on Non-Navigational Uses of International Watercourses.
- 88.
Article 7, 1997 UN Convention on Non-Navigational Uses of International Watercourses.
- 89.
Article 8, 1997 UN Convention on Non-Navigational Uses of International Watercourses.
- 90.
Article 9, 1997 UN Convention on Non-Navigational Uses of International Watercourses.
- 91.
Ibid.
- 92.
Article 11, 1997 UN Convention on Non-Navigational Uses of International Watercourses.
- 93.
Strict time frames have been proposed for the reply to notifications. Article 13 provides for a six-month limit to the notified State to study and evaluate the possible effects of the planned measures. The notifying State also has an obligation to not to implement or permit the implementation of the planned measures without the consent of the notified States (Article 14).
- 94.
Article 18, 1997 UN Convention on Non-Navigational Uses of International Watercourses.
- 95.
Article 20, 1997 UN Convention on Non-Navigational Uses of International Watercourses.
- 96.
Article 21, 1997 UN Convention on Non-Navigational Uses of International Watercourses; Watercourse States can individually, where necessary, and jointly take action to reduce harm to their environment, including harm to human health or safety. Watercourse States, if need be, can harmonize their policies in this regard.
- 97.
United Nations Law of the Sea Convention, 1982, for example, has provisions relating to environment and pollution. Articles 192–237 under Part XII (Protection and Preservation of Marine Environment).
- 98.
Article 31, 1997 UN Convention on Non-Navigational Uses of International Watercourses. It is not clear as to who will decide this criterion of “national security”. One argument could be—it will have to be decided by the Watercourse State itself, taking into account its own circumstances. This could be a very broad argument and States could bring any of the water-related issues under the broad rubric of vital national security. There appears to be no third party determination of this issue.
- 99.
Article 32, 1997 UN Convention on Non-Navigational Uses of International Watercourses. India had reservations on this provision. The phrase `other relief’ could include injunctions or other similar legal means or measure to obtain a relief within the jurisdiction of another country.
- 100.
Article 33, 1997 UN Convention on Non-Navigational Uses of International Watercourses. Those Watercourse States which are Parties to the dispute have an obligation to provide access to the Fact-Finding Commission to the respective territories and to inspect any facilities, plant, equipment, construction or natural feature relevant for the purpose of its enquiry. India had reservations on this provision as well. It should be noted that there is a separate Appendix to the Convention dealing with Arbitration procedures.
- 101.
For the full details and text of the case see http://www.icj-cij.org/files/case-related/92/092-19970925-JUD-01-00-EN.pdf, Accessed on December 23, 2015.
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Hegde, V.G. (2018). National and International Legal Aspects of River Water Sharing: The South Asian Experience. In: Ahmed, I. (eds) South Asian Rivers. The Anthropocene: Politik—Economics—Society—Science, vol 21. Springer, Cham. https://doi.org/10.1007/978-3-319-67374-5_2
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