Transboundary Watercourses
Chapter Sixty-Four
Syllabus topic 3, "International Concern for Environment Protection"
Pages 190 to 192 of 663
In one line
MU set this as a whole question in 2016, and the answer is one rule, one convention, two cases and one Indian treaty.
In exam wording: an international watercourse is a system of surface and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus, parts of which are situated in different States; the governing rules are equitable and reasonable utilisation, the obligation not to cause significant harm, and the procedural obligations of notification, information exchange and consultation, codified in the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses 1997.
The 1997 Convention, in outline
Adopted by the General Assembly on 21 May 1997 by 103 votes to 3 with 27 abstentions, and in force from 17 August 2014, seventeen years later, which tells you how little enthusiasm there was for it. India abstained in the vote and is not a party. So did China, and Turkey voted against.
Its rules matter anyway, because they codify what most States accept as custom.
- Equitable and reasonable utilisation is the primary rule, with a list of relevant factors: geographic and hydrological, social and economic needs, the population dependent on the watercourse, effects of one State's use on another, existing and potential uses, conservation and protection, and the availability of alternatives.
- The obligation not to cause significant harm, with a duty to take all appropriate measures to prevent it and, where harm nevertheless occurs, to consult on mitigation and compensation.
- The procedural rules: regular exchange of data and information; notification of planned measures with a period for reply; consultation and negotiation; and provisions for urgent implementation and for emergencies.
- Protection of ecosystems, prevention of pollution, and the protection of the marine environment where the watercourse reaches it.
The relationship between the first two rules was the hardest question in the negotiation and it remains open: is a use that causes significant harm nevertheless permissible if it is equitable? The Convention requires consultation rather than answering it.
The two cases
Lake Lanoux Arbitration is worked in the previous chapter. Its holding is that there is no requirement of prior agreement unless a treaty imposes one, and that the upstream State must genuinely notify, negotiate and take the other State's interests into account.
Pulp Mills on the River Uruguay is worked in the chapter on prevention. Its holdings on this topic are that the procedural obligations of a river treaty are distinct from the substantive ones and may be breached alone, and that a transboundary environmental impact assessment is required by general international law where there is a risk of significant transboundary harm.
Transboundary Watercourses
The Indian treaties
The Indus Waters Treaty 1960, between India and Pakistan, with the World Bank as a signatory for specified purposes. It allocates the three eastern rivers, the Ravi, the Beas and the Sutlej, to India, and the three western rivers, the Indus, the Jhelum and the Chenab, to Pakistan, subject to India's rights of limited use on the western rivers including run-of-the-river hydroelectric generation. It establishes a Permanent Indus Commission, and a three-tier dispute procedure: the Commission, then a Neutral Expert for differences, then a Court of Arbitration for disputes.
The Ganges Treaty 1996, between India and Bangladesh, sharing the dry-season flow at Farakka on a fixed schedule for thirty years.
Inside India, the Inter-State River Water Disputes Act 1956, made under Article 262, which is the subject of its own chapter.
The award
Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award of 18 February 2013, is worked in the chapter on inter-State rivers. Its two holdings for this chapter are that India was entitled to divert the water for the project, and that its right was limited both by the Treaty and by the principles of customary international law which the Court was directed to apply, so that India must release a minimum flow into the Kishenganga riverbed downstream of the plant.
That award is the best example in the whole subject of customary environmental law being given a quantitative content.
Worked example
State W, upstream, proposes to abstract twenty per cent of a river's dry-season flow for irrigation. State X, downstream, objects.
- Is abstraction unlawful in itself? No. W is entitled to an equitable and reasonable share.
- What decides the share? The factors listed above: hydrology, population dependent, existing uses, alternatives, and the effect on X.
- Does W owe X anything procedurally? Yes: data exchange, notification of the planned measure with time to reply, and consultation.
- What if the abstraction causes significant harm? W must take all appropriate measures to prevent it, and if harm occurs must consult on mitigation and, where appropriate, compensation.
- Can X insist on the natural flow? No. Absolute territorial integrity is rejected.
- What settles it if they cannot agree? Whatever means they choose under Article 33 of the Charter. Without a treaty there is no compulsory forum.
Groundwater, which is the coming problem
The 1997 Convention covers groundwater only where it is related to surface water in a unitary whole. Aquifers that are not so related fall outside it. The International Law Commission's draft articles on the law of transboundary aquifers, of which the General Assembly has repeatedly taken note, apply the same three rules to them: equitable and reasonable utilisation, no significant harm, and cooperation. They are not a treaty.
Transboundary Watercourses
For India this is a real gap: the Indo-Gangetic aquifer is shared with Pakistan, Nepal and Bangladesh and is under severe stress, and there is no instrument governing it.
What it does NOT mean
It does not mean India is bound by the 1997 Convention. India abstained and has not joined. It is bound by the customary rules the Convention codifies, and by its own treaties.
It does not mean the downstream State is protected. It has procedural rights and a substantive rule stated at a high level of generality. Whether it is protected in fact depends on whether there is a treaty with numbers in it.
It does not mean navigation is covered. The 1997 Convention is expressly about non-navigational uses.
Quick revision
- The 1997 Convention: adopted 21 May 1997, 103 to 3 with 27 abstentions; in force 17 August 2014; India abstained.
- Three rules: equitable and reasonable utilisation with its list of factors, no significant harm, and the procedural obligations.
- Lake Lanoux: consultation not consent. Pulp Mills: procedure is separately breachable, and assessment is required.
- Indus Waters Treaty 1960, its Permanent Indus Commission and three-tier disputes procedure; the Ganges Treaty 1996.
- Kishenganga 2013: the customary principles produced a minimum environmental flow.
- Unrelated groundwater is outside the Convention; the ILC draft articles on transboundary aquifers are not a treaty.
Test yourself
1. Is India a party to the 1997 Watercourses Convention, and does that matter? No, India abstained in the vote and has not joined. It matters little for the substance, because India is bound by the customary rules the Convention codifies, and its actual water relations are governed by the Indus Waters Treaty 1960 and the Ganges Treaty 1996.
2. What is the unresolved question at the heart of the Convention? Whether a use that causes significant harm may nevertheless be permissible because it is equitable and reasonable. The Convention requires consultation instead of answering it.
3. Name the three tiers of dispute settlement under the Indus Waters Treaty. The Permanent Indus Commission, then a Neutral Expert for differences, then a Court of Arbitration for disputes.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.