The following post, by Dr. Kishor Uprety, is the fourth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Uprety is a lawyer with The World Bank. He can be reached at aastha7 [at] cox.net.
In South Asia, transboundary water sharing agreements and arrangements tethering neighboring countries are subject to much criticism, as covering too much or too little. Dozens of hydro dams, whether on the Indus, the Ganges, or the Brahmaputra Basin rivers, under preparation, planned or projected, have been considered threats by most riparians, upper and lower alike. Industrial expansion, population growth, global warming, climate change, and underground water pumping exceeding natural recharge rates enhances criticisms, especially when the water flow in international rivers declines below the usual and expected limit. With regard to dams, while upstream users cite vital developmental imperatives as grounds for such construction, downstream riparians often oppose them citing their own socio-economic needs and existing uses that are dependent on existing flows. The above typical crises caused by competing interests call for fine-tuning of transboundary regimes and importing of international norms in the continent.
South Asia is a region that has had to deal with some of the most difficult disputes over transboundary rivers. Due to intra-regional power imbalances, mutual hostility, suspicion, and the absence of an endorsed universal legal regime, sharing transboundary waters and simultaneously sustaining riparian ecosystem, has become increasingly complex. Yet none of the South Asian countries has joined the 1997 UN Watercourses Convention. India and Pakistan abstained from the vote on the Convention at the UN General Assembly, while Afghanistan, Bhutan and Sri Lanka were absent. Bangladesh, Maldives and Nepal voted in favor of the Convention, but none has ratified or acceded to the instrument. As important, India had officially noted its objections during its adoption (see below), and as such, it is not surprising that it has not become a party.
Dissatisfaction with the Convention
The dearth of literature does not permit the formulation of a formal conclusion as to why the South Asian countries are uncomfortable with the Convention. Nevertheless, informal surveys with stakeholders suggest that it is due, essentially, to a perceived inability of the Convention to tackle all of the possible region-specific scenarios and the differing needs and demands among the countries. A number of reasons influenced by historical, political and cultural elements come into play.
First, while some countries in South Asia may seem genuinely to favor a multi-country approach, collective multilateral attention to the problems of transboundary waters has been rare. Historically, the region has lacked a collective strategy and bilateralism remains the focus.
Indeed, water has differing impacts on regional relations. Between India and Pakistan, as well as Pakistan and Afghanistan, water disputes exacerbate already strained bilateral relations. For Bangladesh and Nepal, the Indian approach to water is a primary source of distrust. Conspiracy theories and blame games prevail throughout South Asia. Afghanistan blames Pakistan (and Iran) for its water problems, while Nepal, Bangladesh and Pakistan blame India for theirs. Within India and Pakistan, water shortages are blamed for the actions taken by upstream provinces or federal states. This blame culture reflects the absence of trust that plagues intraregional relationships, and makes multi country river-sharing arrangements particularly difficult to materialize.
Second, these countries consider the principles of water use emanating from the Convention, though intuitively appealing, as difficult to operationalize and implement in a particularly heated geopolitical environment. Also, the many principles contained in the Convention and designed to ensure cooperation in the abstract, are considered vague if not contradictory in reality. As such, they are deemed unsuitable for resolving South Asia-specific issues where the prevailing language is centered on the idea of water as a security priority.
Indeed, there are contrasting views within the region amongst stakeholders and opinion builders. There are those who rely on a realist analysis and see water scarcity and riparian rights to water allocations as part and parcel of state security. Countries where this analysis dominates appear reluctant to engage in multilateral agreements over water because these agreements inherently require the secession of some portion of their national sovereignty. There are also those historical materialists who endorse multilateral water sharing cooperation, but who also believe that such cooperation can only be based on an “unfair” allocation of water skewed towards more developed states, bigger states, or former colonial masters. Countries where this analysis dominates remain confused as to the content as well as the methodology for negotiating agreements.
Third, the treaty-making behavior in the South Asia region is unique. Due to their prevailing mutual distrust, their inability to delink hydropower from water resources, and their reservation against generalizing policy to avoid establishing precedent, the strategic approach of most of the countries is merely to theoretically engage in water-related initiatives, but practically advance only those serving their own specific interests. An interesting twist can further be noted in the case of India, which, being in a unique geographic position – upper riparian to Pakistan and Bangladesh, and lower riparian to Nepal and China – employs a differentiated strategy and, thus, considers a uniform formula for the management of water relations to be impractical.
Individual countries in the region also have their own stance on the provisions of the Convention. For instance, Pakistan considers that “groundwater” should not be part of the definition of a “watercourse” (art. 2) because it is difficult to determine the geographic range of aquifers that are hydraulically linked to rivers, and inequitable to include aquifers that are located entirely within the territory of one country. India takes the stance that art. 3 of the Convention, which ensures nations’ right to enter into watercourse agreements, contradicts its domestic law whereby water is constitutionally a state rather than a Union matter. It also claims that the term “sustainable,” as used in articles 3 and 5 in the context of “sustainable utilization,” is not properly defined. In addition, all of the countries in the region seem to employ different interpretations of the word “significant” in the context of “no significant harm” (art. 7); some of the countries oppose the provision on equality of access to transboundary remedies (art. 32), which they interpret as presupposing regional integration; and Pakistan is displeased that the dispute settlement provision (art. 33) is not binding, while India is dissatisfied that the provision contains elements for mandatory third party procedures.
The Way Forward
Water insecurity is pervasive in the South Asia region, visible in conflicts, disputes and tensions that have erupted within and across countries. Thus, a new approach, centered on the idea of water as a common good and a human right that is universally held and acknowledged, may need furthering. The Ganges basin countries are also adopting strategies for river basin management at the sub-national level. These developments, if complemented with effective persuasion of government and non-government stakeholders, may pave the way for these countries to consider a more uniform and facilitative framework on transboundary water resource management, including the UN Watercourse Convention. Furthermore, the conclusions emanating from the 2013 Permanent Court of Arbitration Award on the Kishenganga Dispute, and the 2007 Decision of the Neutral Expert on the Baglihar Case (both in the context of the Indus River), also could influence the understanding of these countries about the value and complementarity of treaty provisions in relation to customary international law, and encourage them to revisit their long-held positions!