Transboundary Water Issues &Judicial Solutions

Hamid Sarfraz

History• Rival – originated in the late 16th century from

Latin rivalis, originally in the sense 'person using the same stream as another', from rivus 'stream'.

• Conflicts since the Neolithic revolution; when humans settled down to cultivate food between 8,000 and 6,000 BC.

• International water treaties date as far back as 2500 BC, when the two Sumerian city-states of Lagash and Umma crafted an agreement ending a water dispute along the Tigris River

• 263 transboundary watersheds/basins• cover 45.3% of the land surface of the earth• affect about 40% of the world’s population• account for approximately 60% of global river flow

Challenging facts• The problem is growing – 214 international basins listed

in a 1978 UN study and 263 today, largely due to political changes and access to mapping technology

• 145 nations include territory within international basins 21 nations lie in their entirety within international basins 33 countries have greater than 95% of their territory within

these basins

• 19 basins are shared by five or more riparian countries• 158 (60%) international basins lack any type of

cooperative management framework• Of the 106 basins with water institutions, approximately

2/3rd have three or more riparian states, yet more than 80% of the accompanying agreements are bilateral

New realities• Climatic variability and uncertainty in river flows• Rapid population growth, industrialisation and

urbanisation resulting in high demand for energy• Environmental flows – a new demand• High rate of groundwater extraction• Regionalisation vis-à-vis bilateralism• Proliferation of democracy

http://www.internationalwaterlaw.org/

Judicial Solutions

Permanent Court of International Justice• Diversion of Water from the Meuse (Netherlands v.

Belgium)• Oscar Chinn (Britain v. Belgium)• Territorial Jurisdiction of the International

Commission of the Oder River• Jurisdiction of the European Commission of the

Danube Between Galatz and Braila

International Court of Justice• Road Construction in Costa Rica along San Juan

River (Nicaragua v. Costa Rica)• Activities by Nicaragua in the Border Area (Costa

Rica v. Nicaragua)• Pulp Mills on the River Uruguay (Argentina

v. Uruguay)• Dispute regarding Navigational and Related Rights

(Costa Rica v. Nicaragua)• Frontier Dispute (Republic of Benin v. Republic of

Niger)• Kasikili/Sedudu Island (Botswana v. Namibia)• Gabcikovo-Nagymaros Project (Hungary v.

Slovakia)• Land, Island, and Maritime Frontier Dispute

(Honduras v. El Salvador) 1986, 2003

Permanent Court of Arbitration• Indus Waters Kishenganga Arbitration (Pakistan v.

India)

Indus: A Case in Focus

Indus Rivers System/BasinArea 120 m haIrrigates 20 m acresEastern Rivers – 33 MAFWestern Rivers – 136.1 MAF215 million people

Context• Pre partition conflicts• 6 rivers flowing from India with 2 major head-

works in India• Standstill Agreement (18 Dec 1947)• Inter-Dominion Agreement (4 May 1948)• 1960 Indus Waters Treaty

Divisive in nature, hence ‘equitable and reasonable utilisation’ is elusive

Failed to cope with hydrological extremes Lacks environmental protection, preservation and

management Survived two full scale wars and regular ‘wars of words’ Still partially relevant and viable with a need to align with

new realities

1960 Indus Waters Treaty:Dispute avoidance & resolution mechanisms

• Article IX: Settlement of Differences and Disputes

• Indus Waters Commission to decide the course of settlement

• Indus Water Treaty to be the applicable law, but also: International conventions

establishing rules which are expressly recognized by the Parties

Customary international law

Indus Water Commissioners

Neutral Expert

Negotiators

Court of Arbitration

Conflict resolution so far…

Baglihar

• Neutral Expert appointed by WB

• 2005-2007• Win-win determination

India allowed to construct dam with some design changes

Pakistan’s objections regarding pondage and dam’s crest elevation accepted

Both parties agreed to the determination

Kishenganga• PCA• Mar 2010 to date• EIA recognised and

demanded• Partial award

India allowed to construct Run-of-River Plant through diverting water but maintaining the minimum flow of water at a rate to be determined by PCA

India not permitted reduction below “Dead Storage Level” of the water level in the reservoirs of Run-of-River Plants

Future path for both countries• Can both countries afford it to be a business as usual?• Building upon the success of IWT – Addendum• Cooperative water management through

Joint research in the areas of climate change, hydrogeology, glaciology, and geo-informatics through GIS based data collection and sharing systems

Mutual understanding and agreement on a timeframe for storage and release of water in a mutually beneficial manner

Joint adaption strategy to offset the impacts of climate change Catering the environmental flow needs Joint water development and energy generation Cost and benefit sharing

• Ratification of UNWC by both states• Set an example for other conflicts in the region

hsarfraz@gmail.comwww.devconsult.pk

… thank you

… but the water problems of our world need not be only a cause of tension; they can also be a catalyst for cooperation…If we work together, a secure and sustainable water future can be ours.

- Kofi Annan, February 2002