Conflict and

Patricia Birnie
assesses how far international law has helped to resolve disputes over shared watercourses

International lawyers have long played a role in resolving conflicts arising from rivers, lakes and groundwater shared by two or more states, exercising their skill in, for example, developing applicable codes and principles, as drafters of treaties or codes, or as judges or advocates at international tribunals. Some commentators suggest that, in the light of experience to date, we must ask whether the principles of international law now developed provide effectively for environmental protection and sustainable use of international watercourses, or whether they merely serve to prolong disputes.

Concern about the environmental and developmental aspects of use of international watercourses is relatively recent in the international community – as is the encapsulation of these aspects in the amorphous goal of ‘sustainable development’. Historically, the evolution of watercourse law, and emerging codes and treaties, show that many riparian states accept some degree of overuse and pollution, evidenced by their concern to establish sovereignty over ‘their’ waters. They thus appropriate the use of rivers and lakes they border regardless of the effect on other riparians.

After the defeat of Napoleon in 1815, states bordering the Rhine cooperated at the Congress of Vienna in establishing a Rhine Commission to administer a regime of navigational freedom. This led to the institution of river police, levying of fines and Rhine courts to implement the rules and to settle disputes. The same approach was followed in 1856 by Danubean states. These have now been replaced by modern treaties revised to accord with modern concepts of environmental protection and sustainable development.

For most of its subsequent history international law has been primarily concerned with providing for agreements on access and the equitable apportionment of water from cross-boundary sources. This has always presented problems, and still does. The difficulties have been exacerbated, despite their laudable aims, by the series of United Nations conferences addressing and enunciating principles for protection of the human environment and related developmental issues. It began with the 1972 Stockholm Conference on the Human Environment and its Action Plan. Then the 1992 Rio United Nations Conference on Environment and Development and its Agenda 21 addressed the need to promote both environmental protection and development within the aegis of the concept of ‘sustainable development’. Finally the 2002 Johannesburg World Summit on Sustainable Development (WSSD) provided a stronger focus on developmental goals. These conferences have addressed many of the issues and developed guiding principles and action plans.

Growing problems
WSSD endeavoured to balance all the factors inherent in the ‘sustainable development’ concept. This has been made more difficult to achieve, since water problems have been exacerbated by failure to act effectively to achieve the other goals laid down in Stockholm and Rio – which extended the concept to include alleviating poverty and ill health, the establishment of the rule of law and good governance, and other challenging concerns. The 2001 Stockholm Water Symposium highlighted the still growing problems faced by many developed and developing states bordering transboundary watercourses, arising from lack of effective policies, principles and mechanisms for managing water resources. It highlighted over-extraction, pollution, excessive use for irrigation, the possible effects of climate change, building dams for hydroelectric power, and increasing demand for water deriving from population growth and rising living standards. But – whether faced with fights for survival or demands for improved living standards – some governments remain reluctant to cooperate in concluding treaties limiting their freedom of use of watercourses despite growing problems and conflicts, even though water was a priority at WSSD.

The difficulties involved in achieving sufficient international cooperation to resolve transboundary issues have to be faced sooner or later. Resort to internationally binding rules cannot be permanently avoided. In 1997, the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses was concluded. Its Article 5 sets out the principles required to sustain use – equitable and reasonable utilization and participation. Its principles are necessarily very general but provide the international standard against which to measure past and future watercourse treaties.
The difficulties involved in achieving sufficient international cooperation to resolve transboundary issues have to be faced sooner or later
During the treaty’s negotiation several delegations urged that it should reflect contemporary developments in international law aimed at better protection of the environment – but the only change that could be agreed was to add ‘and sustainable’ to Article 5. This consequently reads: ‘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 therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.’ The wording still leaves considerable scope for interpretation, since the obligation is already weakened by the need only ‘to take into account’ other states’ interests, even though states must work together under another article in determining the manner of this ‘cooperation’. Even this requirement is limited: they ‘may consider’ establishing joint mechanisms of commissions ‘as deemed necessary by them to facilitate cooperation’ in the light of cooperative experience in the other regions.

Catalyst for cooperation
A recent publication, Conflict and Cooperation on South Asia’s International Rivers by Salman and Uprety (senior legal advisers at the World Bank), has established how these rivers have become ‘a source of conflict as well as a catalyst for cooperation’ between India and Pakistan, India and Nepal and India and Bangladesh – who have negotiated six treaties addressing complex and different relationships on these watercourses. Despite the difficulties involved, the authors see an emerging worldwide trend to resolve watercourse conflicts, spurred by the development of new global, regional and bilateral legal instruments. This is reflected in a reference in the India-Nepal Mahakali River Treaty to their ‘determination to cooperate in development of water resources and by agreement’, and in the Indus Water Treaty, which divides, rather than shares, the waters between India and Pakistan.

A salutary reminder of the difficulties of resolving or regulating conflicts in managing shared watercourses is provided by a curious solution in the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin concluded between Cambodia, Laos, Thailand and Viet Nam in 1995. The fundamental problem under this treaty is not whether the parties will implement it in a manner that achieves sustainable development, but whether they will give full effect to the Mekong Agreement requirements as a whole. Curious evidence of their willingness to cooperate is found in its Article 29, which offers the option of relocating the permanent office of the Mekong Secretariat. Its pre-treaty headquarters had been situated in Bangkok for some 40 years. In 1998 the four parties concluded a separate Headquarters Agreement, which laid down that it would be rotated between Cambodia and Laos every five years. It is doubtful whether this roundabout solution will benefit the Secretariat’s operations. Ongoing projects are likely to be disrupted; books, documents and equipment will need to be packed and transferred; officials of one state will be substituted by ones from the other, involving changes in official language and, presumably, administrative disruption as new staff grapple with working practices and materials; and completion of projects is likely to be delayed, and their quality affected as new staff are trained. The move to Cambodia has already presented difficulties for academic researchers. Each rotation will also be costly and likely to deter prospective funding bodies.

This brief and very cursory survey of the historic processes of developing international law to regulate use of international water resources, and adapting it to meet the United Nations aims of sustainable development, has established that a great deal has been accomplished since the 19th century, but that a great deal still needs to be done. The ‘hard law’ approach of the Rhine agreement of 1815 is unlikely to be repeated today in many developing countries. The growth in world population, its adverse impact on water quality and the availability of clean water supplies still remains to be resolved – it is to be hoped more speedily. The regulatory process to date has been one of both conflict and cooperation

Professor Patricia Birnie is co-author of Birnie and Boyle, International Law and the Environment, Oxford University Press (second edition).


This issue:
Contents | Editorial K. Toepfer | Strengthening the rule of law | Partners in law | Justice can be shortsighted | Force of law | A matter of judgement | A law of energy | People | Rule of man, or rule of law? | At a glance: The rule of law | Sebastião Salgado | Sustainable development comes from Saturn! | One planet, different worlds | Nature’s wisdom | Kickback fightback | Conflict and cooperation | Holistic landmark | Empowering the poor | Legal climate | Small is effective | Building the framework

Complementary issue:
Water 1996