Transboundary Water Issues & Judicial Solutions

1. Transboundary Water Issues &Judicial Solutions Hamid Sarfraz

2. 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

3. 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

4. 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

5. 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 

6. Judicial Solutions http://www.internationalwaterlaw.org/

7. 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

8. 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

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

10. Indus: A Case in Focus

11. Indus Rivers System/Basin Area 120 m ha Irrigates 20 m acres Eastern Rivers – 33 MAF Western Rivers – 136.1 MAF 215 million people

12. 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

13. 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

14. Conflict resolution so far… Baglihar 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 • 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

15. 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

16. … 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 … thank you hsarfraz@gmail.com www.devconsult.pk