A CRITICAL STUDY ON
CONFLICT AND COOPERATION OF INTERNATIONAL WATER DISPUTES
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A SYNOPSIS
By K P C Rao.,
LL.B., FCS., FCMA.
Practicing Company Secretary,
kpcrao.india@gmail.com
kpcrao.india@gmail.com
I. INTRODUCTION
Water is a vital resource to many
levels of human survival for which there is no substitute; it ignores political
boundaries, fluctuates in both space and time, and has multiple and conflicting
demands on its use. With more than 300
rivers, about 100 lakes, and a large and yet to be determined number of
aquifers shared by two or more states, water could be a cause for disputes, as
well as a catalyst for cooperation. These 300 international watersheds,
covering a little less than one half of the land surface of the globe, affect
about 40% of the world's population. The
problems of water management are compounded in the international realm by the
fact that the international law that governs it is poorly developed, contradictory,
and unenforceable. Recent studies point
to water not only as a cause of historic armed conflict, but as the resource
which will bring combatants to the battlefield in the 21st century.
Water conflict
Water conflict is a term describing
a conflict between countries, states, or groups over an access to water
resources. The United Nations recognizes that water disputes result from
opposing interests of water users, public or private.
A wide range of water conflicts
appear throughout history, though rarely are traditional wars waged over water
alone. Instead, water has historically been a source of tension and a factor in
conflicts that start for other reasons. However, water conflicts arise for
several reasons, including territorial disputes, a fight for resources, and
strategic advantage.
These conflicts occur over both
freshwater and saltwater, and between international boundaries. However,
conflicts occur mostly over freshwater; because freshwater resources are
necessary, yet limited, they are the center of water disputes arising out of
need for potable water. As freshwater is a vital, yet unevenly distributed
natural resource, its availability often impacts the living and economic
conditions of a country or region. The lack of cost-effective water
desalination techniques in areas like the Middle East, among other elements of
water crises can put severe pressures on all water users, whether corporate,
government, or individual, leading to tension, and possibly aggression. Recent
humanitarian catastrophes, such as the Rwandan Genocide or the war in Sudanese
Darfur, have been linked back to water conflicts.
Causes
Scarcity and misuse of fresh water
pose a serious and growing thread to sustainable development and protection of
the environment. Human health and welfare, food security, industrial
development and the ecosystem on which they depend, are all at risk, unless
water and land resources are managed more effectively in the present decade and
beyond that they have been in the past. Water is a vital element for human
life, and any human activity relates somehow to water. Unfortunately, it is not a renewable resource
and in the future there will be lot of water problems. Moreover, some people
state that future wars will be fought for water.
Water conflicts occur because the
demand for water resources and potable water extend far beyond the amount of
water actually available. Elements of a water crisis may put pressures on
affected parties to obtain more of a shared water resource, causing diplomatic
tension or outright conflict.
1.1 billion people are without adequate drinking water; the
potential for water disputes is correspondingly large. Besides life, water is necessary
for proper sanitation, commercial services, and the production of commercial
goods. Thus numerous types of parties can become implicated in a water dispute.
For example, corporate entities may pollute water resources shared by a
community, or governments may argue over who gets access to a river used as an
international or inter-state boundary.
The broad spectrum of water
disputes makes them difficult to address. Local and international law,
commercial interests, environmental concerns, and human rights questions make
water disputes complicated to solve – combined with the sheer number of
potential parties, a single dispute can leave a large list of demands to be met
by courts and lawmakers
Major International Water Disputes
1)
The Gabcikovo – Nagymaros Case
Even when the dispute involves
water quantity, dams, or diversion issues, the questions that the dispute poses
may be quite complex, eluding a speedy and final settlement. The
Gabcikovo-Nagymaros case is an example of such complexities. The dispute arose
between Hungary and Czechoslovakia regarding two barrages over the Danube River
envisaged under a Treaty concluded in 1977 by the two countries. Construction
began in the late 1970s, but in the mid-1980s, environmental groups in Hungary claimed
negative environmental impacts of the barrages and began protesting against the
project, forcing the Hungarian government to suspend work in 1989.
Czechoslovakia insisted that there were no negative environmental impacts and
decided to proceed unilaterally with a provisional solution consisting of a
single barrage on its side, but requiring diversion of a considerable amount of
the waters of the Danube to its territory. Czechoslovakia claimed that this was
justified under the 1977 Treaty. As a result of the unilateral action of
Czechoslovakia, Hungary decided to terminate the 1977 Treaty based on
ecological necessity. The situation became more complicated with the split of
Czechoslovakia in December 1992 into two countries (the Czech Republic and the
Slovak Republic, or Slovakia), and the agreement that Slovakia would succeed in
owning the Czechoslovakian part of the project. By that time, Slovakia had
already dammed the Danube and diverted the waters into its territory. The two
countries agreed in April 1993, basically under the pressure from the
Commission of the European Communities, to refer the dispute to the
International Court of Justice (ICJ).
This is the first international
water dispute to be referred to, and decided by, the Court. The dispute
involves complex legal issues, including the law of treaties, state responsibility,
environmental law, and the concept of sustainable development, as well as
international watercourses. In a brief summary, the Court ruled in September 1997
that Hungary was not entitled to suspend or terminate the work on the project
in 1989 on environmental grounds and that Czechoslovakia, and later Slovakia,
was also not entitled to operate the project based on the unilateral solution
it developed without an agreement with Hungary. The Court further decided that
Hungary was not entitled to terminate the 1977 Treaty on the grounds of ecological
necessity, and thus the Court ruled that the Treaty was still in force. The
Court concluded that “Hungary and Slovakia must negotiate in good faith in the
light of the prevailing situation, and must take all necessary measures to ensure
the achievement of the objectives of the Treaty of 1977, in accordance with such
modalities as they may agree upon” (International Court of Justice, 1997).
However, the two parties have not yet been able to resolve this dispute.
2) Disputes over Boundary Rivers
Rivers serve a multitude of
purposes. They are the sources of water for domestic, municipal, and agricultural
uses, as well as for hydropower, fisheries, and recreational purposes. They
also serve, when navigable, as international highways, connecting countries and
their communities with each other by providing an important mode of transportation.
Less noticed is the fact that international rivers also serve as boundaries
between states. It may seem ironic, and indeed contradictory, that water which serves
as the mode for facilitating the bringing of different peoples, cultures, and
civilizations together, can also become official boundaries and barriers
separating those same people, cultures and civilizations, and hindering their
free movement and contacts. Yet, a large number of rivers and lakes constitute
such international boundaries. The Senegal River separates Senegal from
Mauritania across their entire common borders. So does the Orange River between
Namibia and South Africa, as well as the San Juan River between Nicaragua and
Costa Rica. The Mekong River is a boundary river for large stretches between
Lao PDR and Cambodia, Lao PDR and Thailand, and Lao PDR and Myanmar. The Chobe
River is a boundary river between Namibia and Botswana, and the Amur River
between China and Russia. The Mahakali River is also a boundary river for some
stretches between India and Nepal, and the Ganges between India and Bangladesh.
The Danube River constitutes the boundaries between a number of countries
including Germany and Austria, Austria and Slovakia, and Romania and Ukraine.
The Rio Grande and the Colorado River constitute borders between the United States
and Mexico, and the Niger River between Benin and Niger. Similarly, a number of
lakes, such as Lake Victoria, Lake Chad, Lake Constance, and the Great Lakes of
North America also constitute the borders between a number of countries
(Salman, 2000).
However, the issue of where the
borders run across international rivers or lakes is not always agreed upon. Even
when there is a treaty demarcating the borders across the river or lake,
different interpretations have been given to the provisions of such a treaty
(Querol, 2005). In this connection, four theories addressing this issue have
arisen since the last century. The first is the “condominium” or “no man’s
land” where the borders of each state are set at the banks of the river,
leaving the entire river as a condominium or a no-man’s land. The second is
drawing the borders on the shores of one state, leaving the entire river or
lake within the jurisdiction of the other state, with no part for the former.
The third theory is the “thalweg,” which means the succession of the deepest
points of the river or the channel used by navigators. The fourth is the middle
point of the river (Caflisch, 1998).
Those different theories have given
rise to an increasing number of disputes, four of which have been referred to
the ICJ. The first of those disputes arose in the early nineties between
Namibia and Botswana over their borders across the Chobe River. Where the
borders are drawn would in turn determine which of the two countries would get
the ownership of an island in the river, known as Kasikili by Namibia, and Sedudu
by Botswana. After prolonged attempts to resolve the issue through negotiations
and mediation failed, the two parties took the dispute to the ICJ, which issued
its decision in 1999. The decision is based on the interpretation by the Court
of an 1890 Treaty between Great Britain and Germany regarding their sphere of
influence in Africa. After considering the different theories, the provisions
of the Treaty, and the interpretations of the parties of the law and facts, the
Court concluded that the deep points of navigation across the river constitute the
boundary between the two countries. Drawing the borders along the deep points of
navigation placed the island in the part of the Chobe River falling under the
jurisdiction of Botswana (Salman, 2000).
A similar dispute arose between Cameroon and
Nigeria over their maritime boundaries around the Bakasi Island and their land
and water boundaries around the area of Lake Chad Basin. The Court ruled in
2002 in favour of Cameroon in the maritime boundary, and in favour of Nigeria on
the land and water boundaries. The decision was based on the Court’s interpretation
of a 1919 Agreement between France and Britain. In the case of the land and water
boundaries, the Court confirmed that the frontier follows the line of the watershed
of the Tsikakir River and the Mou River, as the Agreement stipulated, and that
would place the disputed land area under Nigeria. The Court noted further that
the Lake Chad Basin Commission has been authorized by the riparian states to
demarcate the boundaries in the areas not covered by agreements, and that the Commission
should embark on that task. The decision on this issue was overshadowed by the
ruling in favour of Cameroon on the Bakasi Island which falls in the oil-rich
region of the Gulf of Guinea (International Court of Justice, 2002).
A third similar dispute arose
between Benin and Niger over their borders across the Niger River sector and on
the ownership of islands in the River. Niger based its claim on the theory of
the deepest points of navigation in the river as constituting the boundaries.
Benin on the other hand, claimed the borders to be the eastern bank of the river,
thus resulting in the river falling entirely within its territories. The
dispute was eventually referred by the two parties to the ICJ. The Court
accepted Niger claim and ruled in June 2005 that the boundary should follow the
main navigable channel of the Niger River. This would result in the disputed
islands falling under the jurisdiction of Niger (International Court of
Justice, 2005).
In September 2005, the ICJ
registered a fourth similar dispute, this time from Central America. Costa Rica
brought a case against Nicaragua over the San Juan River which forms the
borders between the two countries. Costa Rica does not seem to dispute the
ownership of the entire San Juan River by Nicaragua under an 1858 Treaty.
Rather, Costa Rica is claiming that it has navigational rights under said
Treaty and that Nicaragua is imposing a number of restrictions on its exercise
of such navigational rights. Costa Rica requested the Court to adjudge and
declare that, by its conduct, Nicaragua is violating the obligation to
facilitate and expedite traffic on the San Juan River and allow Costa Rican
boats and passengers to navigate freely without impediment for commercial
purposes, including the transportation of passengers and tourists, without
paying any charges. It is worth noting that the Court in the dispute involving
Botswana and Namibia allowed Namibia the right of navigation on the whole of
Chobe River. However, in the Costa Rica and Nicaragua dispute, Costa Rica is
only demanding navigational rights, based on its interpretation of the Treaty,
and historical facts, and circumstances. It may, however, take some time before
a decision is issued by the Court on this case.
The issue of where to draw the
borders across boundary rivers involves not only navigational rights, but also water
rights – the country that owns the larger portion of the river expects to have
more water rights than the other. It also involves other rights such as
fisheries. As we have seen in two of the African cases, the claims also
included ownership of islands. The decision of the ICJ on the Costa Rica-Nicaragua
case may hopefully lay down detailed rules and procedures regarding boundary rivers and lakes that would provide
clear guidance for other similar disputes.
3)
Disputes
over Water Quality Issues
The Rhine River which is shared by
France, Germany, Luxembourg and the Netherlands is one of the first
watercourses where detailed attention has been paid to the environment. Indeed,
it is one of the most environmentally protected watercourses in the world. It
is worth noting that the first legal instrument dealing with the protection of the
Rhine against pollution dates back to 1963 when the Agreement Concerning the
International Commission for the Protection of the Rhine was concluded. That
Agreement was followed by the Convention of December 1976 for the Protection of
the Rhine against Pollution by Chlorides, and the Additional Protocol of 1991
to the Convention. Those two agreements and the Protocol were complemented by
the Rhine Action Programme of September 1987 and later by the Convention on the
Protection of the Rhine that was concluded in 1999.
The 1999 Convention requires the
parties to adhere to the precautionary, polluter-pays and sustainable
development principles. In addition, the Convention requires that the parties
be guided, inter alia, by the principle of preventive action, principle of rectification,
as a priority at source, and application and development of the state of the
art and best environmental practice. A number of objectives are spelled out in the
Convention. Such objectives include conserving, improving and restoring the
most natural habitats possible for wild fauna and flora in the water, on the
river bed and banks, and in adjacent areas, and improving living conditions for
fish and restoring their free migration. They also include restoring the North
Sea, in conjunction with the other actions to protect it. With all those
details in place, it is surprising that the first quality related dispute to be
adjudicated before an international tribunal would arise in connection with the
Rhine.
The dispute arose between the Netherlands and
France and involved interpretation of the Additional Protocol of 1991 to the
Convention on the Protection of the Rhine against Pollution by Chlorides of
1976. After failing to resolve the dispute through negotiations, the two parties
agreed to refer the dispute to the PCA which, similar to the ICJ, is also an
international judicial organ situated at The Hague. The Netherlands claimed
that the quantities of chlorides stored by France in the Rhine have well
exceeded the amount provided for by the parties under the Protocol. The PCA
concluded in March 2004 that for the period in question, as stated by the
Netherlands, France has indeed exceeded the amount of chlorides it is allowed
to store in the Rhine. Furthermore, the Court ruled that France should pay
compensation for the excess amount that it has discharged in the Rhine (Rhine
Case, 2004). Because Europe is not facing serious disputes over water sharing,
as is the case in most parts of the world, it has turned its full attention to water
quality issues and has indeed gone a long way into protecting its international
watercourses against all types of pollution. This has been achieved through
detailed and comprehensive legal instruments, and effective enforcement
mechanisms, coupled with the political will of the parties to adhere to such
instruments and the judicial decisions resulting there from.
4)
The
Indus Baglihar Dispute
India and Pakistan concluded the Indus
Waters Treaty in 1960 after lengthy and difficult negotiations mediated by the
World Bank and spanning over almost a decade. The Treaty is one of the most
comprehensive and complex legal instruments, consisting of 12 articles and
eight annexures, covering about 150 pages. It is also signed by the World Bank
for certain specified purposes. Most of the purposes of which the World Bank signed
the Treaty have been completed. The only remaining role for the Bank relates to
dispute settlement. Indeed, this is the only international water treaty to be
signed by a third party (Salman, 2003).
The Treaty allocates three of the
six rivers of the Indus River System to India (the Sutlej, the Ravi and the Beas
– collectively called the Eastern Rivers), and the remaining three rivers to Pakistan
(the Indus, the Jhelum, and the Chenab – collectively called the Western
Rivers). However, the Treaty allows India certain uses of the Western Rivers,
and also allows Pakistan certain uses of the Eastern Rivers. Since the
permitted uses of the Western Rivers by India are more extensive than those of
the Eastern Rivers by Pakistan, the Treaty includes two Annexures in this
regard. Annexure C deals with “Agricultural Use by India from the Western
Rivers,” while Annexure D deals with “Generation of Hydro electric Power by
India on the Western Rivers.” The Treaty establishes the Permanent Indus
Commission and lays down detailed responsibilities for the Commission. Such
responsibilities include examination of any question concerning the
interpretation or application of the Treaty. If the Commission fails to resolve
such a question, then the question becomes a “difference” and is referred to a
“Neutral Expert.”
Annexure F of the Treaty deals with
the questions to be referred to the Expert, the appointment procedures and the expenses of the
Expert. The Annexure states that the appointment of the Expert shall be made
jointly by India and Pakistan, or by a person or body agreed upon by India and
Pakistan. If the Parties fail within one month to make an appointment of the expert
or to agree on a person or body to make such an appointment, then the
appointment shall be made by the World Bank, in consultation with the parties.
The Treaty specifies furthermore that if the difference falls outside the list
of questions specified in Annexure F, or if the Expert so decides, then the
difference will be deemed to be a dispute, and will be referred to a “Court of
Arbitration.” The procedures for constituting such a court are quite complex,
involving both the World Bank and the United Nations, and are set forth in
Annexure G to the Treaty (Salman, 2003).
In January 2005, Pakistan submitted
a request to the World Bank asking the Bank to appoint a Neutral Expert under
the Treaty. Pakistan claimed that a difference had arisen between India and
Pakistan relating to the construction by India of a hydro-electric plant on the
Chenab River, known as the Baglihar Project, in contravention of the Indus Waters
Treaty. As specified earlier, the Chenab River is one of the three Western
Rivers allocated to Pakistan. India, on the other hand, stated that the plant,
being a runof- river, is allowed under the Treaty. Pakistan challenged this and
insisted that the project would store water and control the flow of the Chenab
River, and as such, it is not allowed under the Treaty. Thus, the issue relates
to what the Treaty allows India to do on the rivers allocated to Pakistan, and
essentially concerns water use and control.
After studying the various
memoranda submitted by both parties, and after consultation with them, the Bank
appointed a Neutral Expert to address the difference in May 2005. It should be
pointed out in this regard that, according to the Treaty, the decision of the
Neutral Expert is final and binding. It is not appealable to the Court of Arbitration
dealt with under Annexure G of the Treaty. Rather, the process under the Court
of Arbitration is separate and independent. The expenses of the Neutral Expert and
any assistance required will be met from a trust fund established under the
Treaty for this specific purpose, and managed by the World Bank. The Treaty
lays down detailed provisions in this regard, including the eventual meeting of
the entire cost of the Expert by the losing party. Thus, the trust fund is a perpetual
one, unless the World Bank and the two countries decide to terminate it.
As indicated earlier, the Treaty is
a lengthy and complex instrument, and the dispute settlement process is much more
so. The gradual escalation of the points of contention between the parties from
question to difference to dispute and the mechanism for settling each of them
is quite unique. The Neutral Expert deals with differences that the Commission
has addressed, but failed to resolve. However, the decision of the Neutral
Expert is final and binding, and the Court of Arbitration has a parallel,
rather than an appellate jurisdiction. With the Commission consisting of one
member representing each of the two parties, it is very unlikely that the
Commission would succeed in resolving any real questions. Still, this is the first
time since the Treaty was concluded more than forty-five years ago that the
World Bank has been called upon to exercise some of its remaining responsibilities
under the Treaty. Interestingly, the Bank’s role, as a third party, is to
appoint and initially finance a fourth party whose mandate is to resolve the
dispute. It is worth noting that the Treaty has not assigned the role of
dispute settlement to the Bank itself, to the International Court of Justice,
or to the Permanent Court of Arbitration. It remains to be seen how the Neutral
Expert will conduct his responsibilities, how the Parties will react to his decision,
and what contribution to the process of resolution of international water
disputes this case may offer.
Need for Conflict Resolution
Water is a resource vital to all
aspects of a nation's survival, from its inhabitants' biology to their
economy. The scarcity of water in an
arid and semi-arid environment leads to intense political pressures.
Furthermore, water not only ignores our political boundaries, it evades
institutional classification and eludes legal generalizations. Interdisciplinary by nature, water's natural
management unit, the watershed -- where quantity, quality, surface- and
groundwater all interconnect -- strains both institutional and legal
capabilities often past capacity.
Analyses of international water institutions find rampant lack of
consideration of quality considerations in quantity decisions, a lack of
specificity in rights allocations, disproportionate political power by special
interest, and a general neglect for environmental concerns in water resources
decision-making.
Legal principles have been equally
elusive. The 1997 Convention on the Non-Navigational Uses of International
Watercourses Commission, which took 27 years to develop, reflects the
difficulty of marrying legal and hydrologic intricacies: while the Convention
provides many important principles for cooperation, including responsibility
for cooperation and joint management, they also institutionalize the inherent
upstream/downstream conflict by calling for both "equitable use" and
an "obligation not to cause appreciable harm." These two principles are in implicit conflict
in the setting of an international waterway: up-stream riparians have advocated
that the emphasis between the two principles be on "equitable use,"
since that principle gives the needs of the present the same weight as those of
the past. In contrast, down-stream
riparians have pushed for emphasis on "no significant harm," which effectively
protects the pre-existing uses generally found in the lower reaches of most
major streams. The Convention also
provides few practical guidelines for allocations -- the heart of most water
conflict. Allocations are to be based on
seven relevant factors, which are to be dealt with as a whole.[1]
Furthermore, international law only
concerns itself with the rights and responsibilities of states. Some political entities who might claim water
rights, therefore, would not be represented, such as the Palestinians along the
Jordan or the Kurds along the Euphrates.
In addition, cases are heard by the International Court of Justice (ICJ)
only with the consent of the parties involved, and no practical enforcement mechanism
exists to back up the Court’s findings, except in the most extreme cases. A state with pressing national interests can
therefore disclaim entirely the court’s jurisdiction or findings. Given all the
intricacies and limitations involved, it is hardly surprising that the
International Court of Justice has decided only a few cases regarding
international water law.
Put all of these characteristics
together -- international water as a critical, non-substitutable resource,
which flows and fluctuates across time and space, for which legal principles
are vague and contradictory, and which is becoming relatively more scarce with
every quantum of growth in population or standard of living -- and one finds a
compelling argument that, "the wars of the next century will be about
water"
There is a growing literature which
describes water both as an historic and, by extrapolation, as a future cause of
interstate warfare. Westing (1986) suggests that, "competition for
limited...freshwater...leads to severe political tensions and even to war";
Gleick (1993) describes water resources as military and political goals, using
the Jordan and Nile as examples; Remans (1995) uses case studies from the
Middle East, South Asia, and South America as "well-known examples"
of water as a cause of armed conflict; Samson and Charrier (1997) write that,
"a number of conflicts linked to freshwater are already apparent,"
and suggest that, "growing conflict looms ahead"; Butts (1997)
suggests that, "history is replete with examples of violent conflict over
water," and names four Middle Eastern water sources particularly at risk;
and Homer-Dixon (1994), citing the Jordan and other water disputes, comes to
the conclusion that "the renewable resource most likely to stimulate
interstate resource war is river water."
The analysis only describes the
relationship between interstate armed conflict and water resources as a scarce
resource. Both internal disputes, such
as those between interests or states, as well as those where water was a means,
method, or victim of warfare, are excluded.
Also excluded are disputes where water is incidental to the dispute,
such as those about fishing rights, access to ports, transportation, or river
boundaries. Many of the authors, notably
Gleick (1993), Libiszewski (1995), and Remans (1995), are very careful about
these distinctions. The bulk of the
articles cited above, then, turn out to be about political tensions or
stability rather than about warfare, or about water as a tool, target, or
victim of armed conflict -- all important issues, just not the same as
"water wars."
There are only seven disputes where
water was at least partially a cause. The list of the seven disputes described
in below:
Table
showing the major International Water Disputes
Sl.
No
|
Year
|
Details
of the Conflict
|
1
|
1948
|
1948
Partition between India and Pakistan leaves the
Indus basin divided in a particularly convoluted fashion. Disputes over irrigation water exacerbate
tensions in the still-sensitive Kashmir region, bringing the two riparians
"to the brink of war."
Twelve years of World Bank led negotiations lead to the 1960 Indus
Waters Agreement.
|
2
|
1951-1953
|
February1951 -- September1953
Syria and Israel exchange sporadic fire over
Israeli water development works in the Huleh basin, which lies in the
demilitarized zone between the two countries. Israel moves its water
intake to the Sea of Galilee.
|
3
|
1958
|
January
-- April 1958
Amidst pending
negotiations over the Nile waters, Sudanese general elections, and an
Egyptian vote on Sudan-Egypt unification, Egypt sends an unsuccessful
military expedition into territory in dispute between the two
countries. Tensions were eased (and a Nile Waters Treaty signed) when a
pro-Egyptian government was elected in Sudan.
|
4
|
1963-1964
|
June
1963 -- March 1964
1948
boundaries left Somali nomads under Ethiopian rule. Border skirmishes
between Somalia and Ethiopia are over disputed territory in Ogaden desert,
which includes some critical water resources (both sides are also aware of
oil resources in the region). Several hundred are killed before
cease-fire is negotiated.
|
5
|
1965-1966
|
March
1965 -- July 1966
Israel and
Syria exchange fire over "all-Arab" plan to divert the Jordan River
headwaters, presumably to preempt Israeli "national water carrier,"
an out-of-basin diversion plan from the Sea of Galilee. Construction of
the Syrian diversion is halted in July 1966.
|
6
|
1975
|
April
-- August 1975
In a particularly low-flow year along the
Euphrates, as upstream dams are being filled, Iraqis claim that the flow
reaching its territory was "intolerable, and asked that the Arab League
intervene. The Syrians claim that less
than half the rivers normal flow is reaching its borders that year and, after
a barrage of mutually hostile statements, pull out of an Arab League
technical committee formed to mediate the conflict. In May 1975, Syria closes its airspace to
Iraqi flights and both Syria and Iraq reportedly transfer troops to their
mutual border. Only mediation on the
part of Saudi Arabia breaks the increasing tension.
|
7
|
1989-1991
|
April
1989 -- July 1991
Two
Senegalese peasants were killed over grazing rights along the Senegal River,
which forms the boundary between Mauritania and Senegal, sparking smoldering
ethnic and land reform tensions in the region. Several hundred are
killed as civilians from border towns on either side of the river attack each
other before each country uses its army to restore order. Sporadic
violence breaks out until diplomatic relations are restored in 1991.
|
II.
AIMS / OBJECTS
OF THE STUDY
The
following are the objectives of the study:-
1)
To study evolution of international
water disputes and understands the reality of historic water conflicts.
2)
To examine the reasons for the international
water disputes.
3)
To study the experiences and
findings in resolving the international water disputes.
4)
To examine some new and emerging types
of disputes, parties, and Settlement Institutions .
5)
To attempt to draw lessons and
conclusions from such international water disputes.
6)
To suggest ways and means to
improve mechanism to resolve the disputes more expeditiously.
7)
To give reasons for the suggestions
based on empirical research.
III. SIGNIFICANCE OF THE TOPIC OF
RESEARCH
The role of international water law,
like the rest of international law, as a general rule, is to regulate the
relationship between states. However, international law requires states not to
discriminate on the basis of nationality or residence or place of birth in granting
access to judicial or other procedures for persons who suffer serious Trans boundary
harm as a result of activities related to an international watercourse (McCaffrey,
2001). Although this theory has not been tested, the situation is changing and the
theory is now facing a reality check. Two recent cases will test the limits of
this theory, and each could end up being a watershed in this field.
One of the two cases relates to the
All-American Canal. This Canal was constructed in 1942 by the United States of
America to carry water from the Colorado River to the Imperial Irrigation
District of California, running fully within California. It is called the
All-American Canal because it replaced the Alamo Canal that carried water from
the Colorado River to the Imperial Valley of California, but ran through
Mexico. It is worth adding that the Colorado River, as well as the Rio Grande
and Tijuana River, are shared by the United States and Mexico. Those rivers are
governed by a Treaty concluded in 1944 by the two countries. The All-American
Canal, like the Alamo Canal, is unlined and provides recharge from seepage to
the Mexicali Aquifer in the range of 68,000 acre feet annually. The Aquifer is
used by the border communities in both the United States and in the Mexicali
Valley in Mexico. The 1944 Treaty deals only with the Colorado surface water,
and does not address issues of groundwater related thereto. Because of this
large amount of seepage, the United States now plans to construct a new canal
lined with impervious concrete, in place of the existing porous All-American
Canal. The proposed concrete lined canal would essentially end the seepage that
replenishes the Mexicali Aquifer, and “save” the 68,000 acre feet of water that
seeps annually. The plan is to send the saved water to San Diego County
residents in California (California Water, 2005).
In July 2005, a Mexican organization
known as Consejo de Desarrollo Economico de Mexicali A.C. (CDEM) filed, along
with two United States organizations (Citizens United for Resources and the
Environment [CURE] and Desert Citizens Against Pollution [DCAP]), a class
action law suit against the United States Government, the Secretary of the
Department of Interior, and the Commissioner of the Bureau of Reclamation. The
law suit was filed in the United States District Court in Las Vegas challenging
the decision to construct the new concrete, impervious canal. The law suit
alleges that the Mexicali Valley is a home to over 1.3 million people who are
dependent on groundwater (well water) from the Mexicali Aquifer for a
significant part of their irrigation and drinking water needs. Nurtured by this
water, the Mexicali Valley has become an economically diverse and stable border
region just south of the Imperial Valley in California, and both Valleys have interdependent
and integrated economies and work forces. The suit further claims that for
millennia the Colorado River and the Alamo tributary recharged the Mexicali
Aquifer, and that groundwater recharge derived from seepage is essential to the
sustainability of the Mexicali Aquifer and to maintaining water quality in the
Aquifer.
The suit also alleges that the
environmental impact study for the new canal is eleven years old and has not been
updated, and the construction raises various and serious adverse impacts
stemming from the lining of the canal. Such impacts relate to air quality,
wildlife and habitat, as well as the failure to conduct meaningful public
partici pation or studies for alternatives. With regard to the water issue, the
suit claims that the diversion of the seepage water (which it claims to be
100,000 acre feet per year) from the Mexicali Valley to other uses “potentially
renders unusable the entire Mexicali Valley aquifer, renders valueless the
infrastructure improvements and land irrigated by seepage, and puts the
economic viability of an entire economic region at risk. The above actions
constitute an unconstitutional deprivation of property without due process of
law in violation of the class’ substantive and procedural rights.” It lists
four bases for supporting its claim to water rights of the seepage: (i) prior
appropriation of the water from the canal seepage; (ii) estoppel by reason of
the knowledge of all parties of the seepage, the reliance of the Mexicali
residents on such water for over a century, the construction of extensive
waterworks, pumping facilities and infrastructure to transport and utilize such
water, and the hardship on the class; (iii) Mexican federal law that recognizes
the entitlement to well water, as well as international comity; and (iv)
international and equitable concepts of apportionment and comity. The suit
requests that the United States Government be enjoined and restrained from
construction of the new All-American Canal Project until a full hearing of the
suit and also be enjoined and restrained from confiscating or re-distributing
the water rights of the plaintiffs (CDEM, 2005).
This is an extremely novel claim.
The coalition of claimants from across the borders may pre-empt, or at least
weaken, any claims by the defendants that CDEM does not have a locus standi (or
a right to sue) before the United States Courts. It may also make it difficult
for the Court to pass a judgment (if indeed it does) for the United States
plaintiffs alone and not to include the Mexican ones. Another interesting
feature of the claim is that it was not initiated by the Mexican Government
against the United States Government. Rather, it was initiated by Mexican citizens
and an organization, and was being adjudicated before a United States District
Court, and not before an international tribunal or by a third independent
party. It is likely that the United States may simply claim that the seepage
water has been allocated under the 1944 Treaty to the United States, and the
United States is simply reclaiming that water. It may also argue, along those
lines, that the issue is one of impacts of the canal, and not one of water
rights. However, it remains to be seen how this suit will be decided and what
precedent it will establish for these kinds of claims and claimants.
The other case is equally novel and
involves United States organizations and citizens against the Mexican
Government. Thus it is basically the reverse of the first case. This case
involves the Rio Grande which forms the boundaries between the United States
and Mexico for more than 1,200 miles and provides water for many purposes in
the two countries. The water sharing of the Rio Grande is regulated, as stated
earlier, by the 1944 Treaty between the two countries. This is the same Treaty
that also regulates the sharing of the waters of the Colorado and Tijuana Rivers.
The Treaty provides Mexico with two thirds of the flows that feed into the Rio
Grande from the six major tributaries that enter from Mexico. The United States
receives all of the flows from tributaries on the United States side, and the
remaining one third from the six Mexican tributaries. Water delivery by Mexico
to the United States from these six tributaries must average 350,000 acre feet per
year, measured in five years cycles. If Mexico cannot meet this obligation
because of “extraordinary drought,” it must make up the deficiency during the
next five year cycle. Hence, the Treaty allows Mexico to accumulate a water
debt. The procedures for repaying the debt have been established by the
International Boundary and Water Commission established under the Treaty.
Prolonged periods of drought across
the borders between Mexico and Texas during the early 1990s, compounded by population
growth and extensive industrialization, resulted in considerable water
shortages. Starting in 1992, Mexico claimed that “extraordinary drought” was
preventing it from meeting its Treaty obligation of delivering 350,000 acre feet
annually to the United States. By the end of the five year cycle (1992–1997),
Mexico’s water debt to the United States was estimated as one million acre
feet. Although Mexico started repaying part of that debt, it was unable to meet
its full obligations under the 1997–2002 cycle. Mexico claimed during
negotiations with the United States that any deficit incurred during the
1997-2002 cycle could be deferred until the end of the 2002-2007 cycle. The
United States, on the other hand, argued that the water debt incurred during
the 1997-2002 cycle should be made up concurrently with the previous 1992-1997
water debt.
In January 2005 a number of
irrigation districts, trusts and individuals in Texas (Bayview Irrigation
District and others) submitted a request for arbitration against Mexico to
ICSID. The request is filed under the provisions of Article 1120(1) (b) of the
North American Free Trade Agreement (NAFTA), and is based on Mexico’s failure to
repay this water debt. The request alleges that each claimant is an investor
and owner of an integrated investment which includes rights to water located in
Mexico, facilities to store and distribute this water for irrigation and
domestic consumption, irrigated fields and farms, farm buildings and machinery,
and on-going irrigated agricultural businesses. It further alleges that the
claimants have invested millions of dollars in integrated water delivery
system, including pumps, aqueducts, canals and other facilities for the storage
and conveyance of their water to the land on which it is used, including the
substantial sums for the purchase of water rights, and the cost of its delivery
and administration.
The request goes on to emphasize
that each claimant’s investment is entirely predicated on this right to receive
water located in the Mexican tributaries and that such rights have long been
recognized as property rights. The request asserts that the claimants’
integrated investment meets the definition of the term “investment” contained
under Article 1139 (g) of NAFTA. That Article defines investment to mean “real
estate or other property, tangible or intangible, acquired in the expectation
or used for the purpose of economic benefit or other business purposes.” The claimants
also argue that although the term investment is not defined in the ICSID
Convention, their investment satisfies the factors for the working definition
of investment set forth in treaties on ICSID and the Rules Governing the Additional
Facility for the Administration of Proceedings by ICSID. Based on this, the
claimants allege that Mexico has violated Articles 1102, 1105, and 1110 that
provide that NAFTA Parties shall treat investors of another party no less favourable
than they treat their own investors with respect to the establishment, acquisition,
expansion, management, conduct, operation and sale, or other disposition of investments.
The request alleges that between
1992 to 2002 Mexico has captured, seized, and diverted for the use of Mexican farmers
the foundation of their investment of approximately 1,219,521 acre feet of
irrigation water located in Mexico and owned by the claimants, in violation of
the 1944 Treaty. The claim stresses that through this diversion “Mexico drastically
increased its irrigated agricultural production on the Mexican side of the Rio
Grande, while the crops of the United States farmers in the Rio Grande Valley
shriveled. Mexico thus treated the investments of the United States farmers
less favourably than it treated its own investors.” The claim also alleges that
Mexico has violated the 1944 Treaty by constructing and operating seven dams on
the tributaries of the Rio Grande that are collecting and diverting for use by
its own nationals water rights belonging to the claimants, thus increasing the
deficit flow to the claimants.
The Claimants estimate the economic
value of their irrigation water in the lower Rio Grande Valley from 1992 to
2002 at $350 to $730 per acre foot, or a total of $320,124,350 to $667,687,930,
for taking of their water, after accounting for a 25 percent loss through
evaporation, diversion losses, and transportation losses (which results in
914,641 acre feet of water). The claimants also asked for interest on this
amount accruing from October 2002 until the day of payment, costs of the
attorneys, consultants, arbitration panel, and such other losses and expenses as
are legally allowable, together with such further and additional relief as the
Arbitration Tribunal may deem appropriate (Bayview, 2005).
ICSID agreed on July 1, 2005, to
register the claim and start the arbitration proceedings. However, on September
30, 2005, the International Boundary Water Commission, Office of the
Commissioner for the United States, released a statement indicating that Mexico
has delivered to the United States sufficient volumes of water to pay off its
debt in its entirety. The statement further clarified that the paid off debt as
of October 1, 2004, stood as 716,670 acre feet.
This is indeed an extremely novel
and interesting case. It shares the general similarity with the previous case
of the coalition of claimants of Mexico and the United States in being a claim
involving, inter alia, citizens of one country against the government of
another country. However, whereas both claims stem from, and have basis in the
1944 Treaty, the Texan claimants, unlike the coalition of claimants in the
Bayview case, chose to invoke NAFTA, as well as the Treaty. And whereas the
coalition of claimants chose the United States courts for their case, the Texan
claimants decided to take their case to ICSID.
It remains to be seen what effects
the repayment by Mexico of its water debt will have on the claims. Will the claimants
still go ahead with their claims for what they consider as financial losses
during the preceding years, as well as the other claims? Assuming that they
decide to proceed with the claims, it will be interesting to see how the ICSID
panel will decide on the issue of its jurisdiction, as well as on the remaining
substantive issues. Such substantive issues include whether citizens of one
country have the right to invoke a Treaty concluded by their government, or
whether that right belongs only to the government. The request for arbitration
also raises the issue of whether the claimants should pursue their claims
against their own government that granted them the water right in the first
place, but failed to deliver that right, rather than against Mexico. It will
also be interesting to see what the official position of the government of the
United States will be on those claims.
IV. RATIONALE OF STUDY
Water resources are facing
tremendous and ever-increasing pressures throughout the globe. The population of
the world has more than tripled in the last century, presenting major
challenges to all governments of the world. Environmental degradation and
hydrological variability, as well as urbanization and industrialization have
compounded those challenges. Such challenges are particularly daunting to
developing countries because the rates of population growth and urbanization
both are high, and per capita water availability is already low. Disputes
resulting from the competing demands between different users and uses at the
local, district, provincial, national, and international levels keep
multiplying. Issues related to international waters are becoming increasingly
apparent at, and indeed, intertwined with domestic uses and needs. Utilization
of shared waters by one country is now, more than ever before, having more
direct effects on other countries sharing the same watercourse, whether such
watercourse is surface or groundwater.
With more than 300 rivers, about
100 lakes, and a large and yet to be determined number of aquifers shared by
two or more states, water could be a cause for disputes, as well as a catalyst
for cooperation. Indeed, that has been the situation globally, particularly in
the last decade. Examples of both disputes and cooperation at the international
level are abundant. Some of the disputes have been peacefully resolved, while
others are still awaiting resolution. Other disputes are brewing and could
erupt any time. Resolution of some disputes has been achieved by the parties
themselves in some instances, and through third parties in others (Permanent
Court of Arbitration, 2003). On the other hand, cooperation has resulted in
tangible gains in some cases, whereas such gains are still to materialize in
others.
India and Pakistan, with the
mediation of the World Bank, were able to resolve their dispute over the Indus River
System in 1960 when they concluded the Indus Waters Treaty. That Treaty,
following the Solomonic wisdom, divided the six rivers between the two
countries, raising questions as to whether better and more cooperative and
collaborative results could have been achieved through sharing, rather than
through division, of the Indus Basin. Moreover, the recent dispute
between the two countries over the Baglihar power plant presents, as will be discussed
below, a major challenge.
A year earlier, in 1959, Egypt and
Sudan resolved their dispute over the sharing of the Nile waters and the
construction by Egypt of the High Dam by concluding an Agreement for the Full
Utilization of the Nile Waters. However, seven other riparians of the Nile at
that time were left out of the process, raising questions about the fairness
and sustainability of that Agreement. The Nile Basin Initiative (NBI) that is currently
being facilitated by the World Bank, the United Nations Development Programmme
and other donors, and that was officially launched in 1999, aims at assisting
the riparian states in achieving an equitable and reasonable utilization of the
waters of the Nile. The NBI has succeeded in bringing together for the first
time those riparian states, at the ministerial level, and in establishing a
secretariat, as well as a consultation and decision making process. However, seven
years after the NBI was officially launched, a treaty encompassing all the
riparians is still to be agreed upon.
Four of the Mekong riparians –
Thailand, Vietnam, Lao People’s Democratic Republic (Lao PDR), and Cambodia –
have been cooperating for some time and have concluded the Agreement on the Cooperation
for the Sustainable Development of the Mekong River Basin in 1995. The
Agreement reaffirmed the spirit of cooperation that was started in 1957, and
strengthened the Mekong River Commission. However, two of the Mekong riparians,
namely China and Myanmar, are not parties to the Treaty. The absence of China,
in particular, raises questions about the viability and sustainability of
cooperation because China is the upper most riparian and the strongest regional
power. Similarly, eleven of Danube riparians concluded a comprehensive Convention
on Cooperation for the Protection and Sustainable Use of the Danube River in
1994. In spite of this cooperative trend, two of the Danube riparians, Hungary
and Slovakia, are engaged in a prolonged and complex dispute, which, as will be
discussed below, still awaits a final resolution.
In 1996, India and Bangladesh
concluded a Treaty on Sharing of the Ganges Waters. The Treaty ended a bitter dispute
that lasted, with intermittent and inconclusive short term agreements, for more
than thirty years, and the dispute itself predated the emergence of Bangladesh
as an independent nation. However, implementation of the Treaty ran into
difficulties because in some seasons there was not enough water to meet the
allocations for both countries under the Treaty. More importantly, the Treaty
is to remain in force for thirty years only, expiring in 2026. With about
one-third of the Treaty period having elapsed, legitimate questions are being
asked as to whether the Treaty, similar to the other short term agreements, has
also missed the opportunity for a lasting durable solution. Such solution would
address, once and for all, the basic issue of augmenting the flow of the Ganges
during the dry season to meet the ever-increasing demands of
both countries.
This mixed picture is not different
at the global scene. In 1997, after more than a quarter of a century of
preparatory work and deliberations, the United Nations Convention on the Law of
the Non-Navigational Uses of International Watercourses was adopted by the
General Assembly of the United Nations by a large majority, exceeding one
hundred members, with only three countries opposing. However, nine years later,
the Convention is still to attain the necessary number of instruments of
ratification to enter into force and effect. Only fourteen countries have thus
far ratified the Convention, which needs 35 instruments of ratification to
enter into force. This slow pace has raised concerns as to whether the
Convention will ever enter force.
Moreover, there are international
watercourses where there are currently no agreements, or even attempts to address
the existing or emerging disputes and build confidence and shared vision towards
cooperation. The dispute over the Tigris and Euphrates between Turkey, Iraq,
and Syria falls under this category. A similar situation exists on the Jordan River
and its tributaries between the Palestinians, the Syrians, the Lebanese, and
the Israelis, as well as on the shared groundwater between Israel and the
Palestinians.
Clearly, the picture over international
waters is a mixed one. There are many serious global attempts at cooperation, but
not all are inclusive, and a number of them have not yet produced tangible and
sustainable results. In other instances, no serious attempts are underway to
address the existing and brewing disputes. As such, cooperation may be
highlighted and underscored as the emerging trend. Conversely, others may argue,
based on the above survey, that disputes are still dominating the international
water scene. Accordingly, the question of whether the glass of cooperation on
international waters is half full or half empty is the subject of a heated and
passionate debate.
Most of the disputes discussed above have
centered on water quantity and the related issues of dams and diversion. As
such, resolution of those disputes addresses the question of which of the
riparian countries gets how much water. However, even those kinds of disputes
are getting quite complex. Furthermore, other international water disputes are
emerging, with difficult, intricate, and novel shapes. The parties are no
longer riparian states only. Individuals and legal entities of one riparian
state are now parties to such disputes against the governments of other
riparian states. Multinational corporations are also emerging as parties to
such international water disputes against states. Issues where differences are
emerging are no longer confined to quantity, but extend to quality, right of
use, as well as monetary compensation. The question of where the borders across
boundary rivers are to be drawn is
emerging as a serious and complex one. Settlement of international water
disputes is no longer confined to the International Court of Justice (ICJ). The
Permanent Court of Arbitration (PCA), the International Centre for Settlement
of Investment Disputes (ICSID); Third parties and even regional and national
courts are now playing an important role in dispute settlement.
V.
HYPOTHESIS
The frame work of hypothesis is
based on the following postulates:
1)
With water becoming
increasingly a scarce resource and with the steady growth in population,
disputes will continue to erupt and the claims will get more complex and novel.
2)
Studies of international water
disputes indicate a clear trend of expansion, complexity, and novelty of these
disputes.
3)
War over water is neither
strategically rational, hydrographically effective, nor economically viable.
4)
Shared interests along a waterway
seem to overwhelm water's conflict-inducing characteristics and, once water
management institutions are in place, they tend to be consistently resilient.
5)
International institutions are not
adequately equipped to resolve water disputes.
6)
Early intervention is also
beneficial to the process of conflict resolution, helping to shift the mode of
dispute from costly, impasse oriented dynamics to less costly, problem solving
dynamics.
7)
The parties are no longer one state
against another state. Such parties now include individuals, legal entities and
trusts, as well as multinational corporations of one state against another
state.
8)
The settlement institutions have
expanded beyond the ICJ to include the PCA, ICSID, as well as national courts
and third and fourth parties
9)
Policymakers and their institutions
will have to foster an active dialog between all approaches to this critical
resource.
VI. METHODOLOGY
As is
well-known at the present day, a research scholar cannot depend upon any one
particular method for the preparation of a thesis. A combination of different
methods is required to achieve the best possible results. Thus a Historical-cum
Analytical method has been applied mainly in the preparation of the present
work. Where ever necessary, comparative and critical methods also are employed
to have a detailed study of the subject under consideration.
VII.
SOURCES OF INFORMATION
The required materials for the thesis have been collected mainly by
applying the doctrinal approach. This approach deals with formal sources of law
like legislation, case law, text books, articles etc. It is basically textual
in approach as contrasted to non-doctrinal approach which is primarily
contextual in nature. In the preparation of this thesis, by adopting the
above-mentioned technique, data have been collected from various International
Conventions, International Treaties,
Case Studies, Reports of the Inter National Organisations, Literature of the UN
/ judgments of the International Court of Justice, also cases decided by the
settlement institutions, International and National Tribunals, Authoritative
Text Books, etc.
VIII. CHAPTERISATION
The
thesis is divided into 6 chapters as under:
Chapter
– I
Introduction: In this chapter an outline of the scheme of research intended for the
thesis is brought out. The objectives of
the study, methodology, sources of information are also discussed in this
chapter.
Chapter
– II
International
water disputes: In this chapter Nature and Causes of the Water Disputes, Historical
Perspectives of the International Water Disputes, and how these Major conflicts
are resolved are discussed in detail.
Chapter
– III
Cooperation
and Conflict: In this
chapter the need for international cooperation for expeditious settlement of
the conflicts has been elaborately brought out.
Chapter
– IV
International
Settlement mechanism: In this
chapter, different techniques and other methods being adopted by Settlement
Institutions/ Tribunals, etc., are elaborately discussed together with the International
Conventions/ Treaties.
Chapter
– V
Changes
needed to tackle new brand of International
Water Disputes: In this
chapter reforms needed in strengthening the settlement mechanism to address the
new claims, claimants and settlement institutions in tune with the
International Law & practices. While doing so, our past experiences are
taken into consideration.
Chapter
– VI
Conclusion
& Recommendations: In the
last chapter, a brief summary of the thesis to ensure the effective functioning of International Dispute
mechanism to settle the Trans boundary water disputes.
In order to fill this
institutional gap, the researcher suggests two critical lessons for
policymakers concerned with water disputes:
1)
Water dispute amelioration is as
important, and less costly, than conflict resolution. Most often, international attention, and
resultant financing, is focused on a basin only after a crisis or
flashpoint. Such has been the case on
the Indus, Jordan, Nile, and Tigris-Euphrates basins, for example. It is worth
noting, though, that in the exceptions to this pattern, the Mekong and La Plata
commissions for example, an institutional framework for joint management and
dispute resolution was established well in advance of any likely conflict. It
is also worth noting the Mekong Committee's impressive record of continuing its
work throughout intense political disputes between the riparian countries, as
well as the fact that data conflicts, common and contentious in all of the
other basins presented, have not been a factor in the Mekong. In fact, the experience of the commission such
as those of the Amazon, La Plata, or Mekong may suggest that when international
institutions are established well in advance of water-stress they help preclude
such dangerous flashpoints. As noted
earlier, other basins have equally resilient institutions, which have survived
even when relations on other issues were strained.
Early intervention is
also beneficial to the process of conflict resolution, helping to shift the
mode of dispute from costly, impasse oriented dynamics to less costly, problem
solving dynamics. In the heat of some flashpoints,
such as the Nile, the Indus, and the Jordan, as armed conflict seemed imminent,
tremendous energy was spent just getting the parties to talk to each other. Hostilities
were so pointed that negotiations inevitably began confrontationally, usually resulting
in a distributive approach being the only one viable.
In contrast,
discussions in the Mekong Committee, the multilateral working group in the
Middle East, and on the Danube, have all moved beyond the causes of immediate
disputes on to actual, practical projects which may be implemented in an
integrative framework.
Of course, to be able
to entice early cooperation, the incentives have to be made sufficiently clear
to the riparians. In all of the cases
mentioned above, not only was there strong third-party involvement in
encouraging the parties to come together, extensive funding was made available
on the part of the international community to help finance projects which would
come from the process.
2)
Water is, by its nature, an
interdisciplinary resource -- the attendant disputes can only be resolved
through active dialog among disciplines.
Just as the flow of water totally ignores political boundaries, so too
does its management strain the capabilities of institutional boundaries. While water managers generally understand and
advocate the inherent power of the concept of a watershed as a unit of
management, where surface- and groundwater, quantity and quality, are all
inexorably connected, the institutions developed to manage the resource follow
these tenets only in the exception.
To address these
deficiencies at the international level, some have argued that international
agencies might take a greater institutional role. Lee and Dinar (1995) describe the importance
of an integrated approach to river basin planning, development, and
management. Young, Dooge, and Rodda
(1994) provide guidelines for coordination between levels of management at the
global, national, regional and local levels.
Delli Priscoli (1989) describes the importance of public involvement in
water conflict management, and, in other work (Delli Priscoli 1992), makes a
strong case for the potential of Alternative Dispute Resolution (ADR) in the
handling of water resources issues by the World Bank and external support
agencies. Trolldalen (1992) likewise
chronicles environmental conflict resolution at the United Nations, including a
chapter on international rivers.
Most-recently, the creation of a World Water Council includes among its
four primary challenges a "global institutional framework for water"
(WWC Bulletin, December 1995).
Regardless of the
institutional framework, it is clear that no single discipline -- neither law,
nor economics, nor engineering -- will provide all of the answers for resolving
water disputes. Rather, policymakers and
their institutions will have to foster an active dialog between all approaches
to this critical resource.
With water becoming increasingly a
scarce resource and with the steady growth in population, disputes will continue
to erupt and the claims will get more complex and novel. The failure of the
world community to agree on a universal treaty to regulate the sharing and uses
of international watercourses is quite unfortunate and has hindered cooperation
on international watercourses. Undoubtedly, cooperation is a more effective way
for managing disputes and for achieving win-win solutions for all the parties
concerned. Cooperation can, and indeed should, go beyond the classic approach
of sharing the waters, or the river basins, to sharing the benefits derived from
such waters.
Every effort has been made to make
the thesis as exhaustive and as comprehensive as possible.
------------------------------------------------------------------------------------------------------------------
[A Research proposal submitted to A P University of Law]
[This material is put online to further the educational goals of ‘Study in Law’. This material may be used freely for educational and academic purposes. It may not be used in any way for profit]
Further Readings
Books
1) H.M.Seervai:
Constitutional Law of India (in 2 volumes) 4th Edition., Universal
Book Traders, New Delhi.
2)
Alam, Undala. "The Indus Water Treaty: Peace Amidst War."
Presented at the IXth World Water Congress, 1-6 September 1997, Montreal,
Canada.
3)
Dr. T. Padma; Principles of International Law, 2011 ALT Publications,
Hyderabad.
4)
Biswas, A. K. and T. Hashimoto, eds. 1996. Asian International Waters:
From Ganges-Brahmaputra to Mekong. Oxford: Oxford University Press.
5)
Biswas, A., J. Kolars, M. Murakami, J. Waterbury, and A. Wolf. 1997. Core
and Periphery: A Comprehensive Approach to Middle Eastern Water. Oxford: Oxford
University Press.
6)
Samson, Paul and Bertrand Charrier. "International Freshwater
Conflict: Issues and Prevention Strategies." Green Cross Draft
Report, May 1997.
7)
Wolf, A. T. "International Water Conflict Resolution: Lessons from
Comparative Analysis." International Journal of Water Resources
Development. Vol. 13 #3, December 1997.
Legislation, Orders and
Ordinances
1) International Conventions/ Treaties
Newspapers
and Magazines
1)
The
Hindu (Daily
Newspaper)
2)
Hindustan
Times (
Daily Newspaper)
3)
Indian
Express (
Daily Newspaper)
4)
India
Today (Weekly
National Magazine)
5)
Outlook,
(Weekly National Magazine)
6)
The
Pioneer (Daily
Newspaper)
7)
Seminar (Monthly
Journal)
8)
The
Statesman (Daily Newspaper)
9)
Times of
India (
Daily Newspaper)
10)
The
Tribune (Daily
Newspaper)
Web-sites
1)
www.lawcommissionofindia.nic.in
2)
www.lawmin.nic.in
3)
www.indlaw.com
4)
www.legalpundits.com
5)
www.timesofindia.indiatimes.com
6)
www.thehindu.com
7)
www.economictimes.indiatimes.com
8)
www.hindustantimes.com
9)
www.scj.in
10)
www.scconline.com
11)
www.commonwealthlawyers.com
12)
www.lawyersclubindia.com
[1] The ICJ came into being in 1946,
with the dissolution of its predecessor, the Permanent Court of International
Justice. That body did rule on four
international water disputes during its existence from 1922-1946. The one case decided by the ICJ was about the
Gabcikovo Dam on the Danube.
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