Water Without Borders: How International Law Shapes the World’s Rivers

Given that water is essential to life, water rights are a crucial aspect of international law. It is worth noting that only 0.5 percent of the water on Earth is usable freshwater. Water rights deal with the legal framework governing the access, utilization, and distribution of water resources among states, particularly across international boundaries. These frameworks aim to ensure equitable and sustainable water distribution, addressing the needs of different riparian states while preventing conflicts. As water scarcity intensifies globally due to climate change, population growth, and industrialization, the importance of effective water-sharing mechanisms cannot be overstated. This article investigates how well international law works to address water scarcity through sustainable water use agreements and fair cross-border water sharing. It begins by exploring the present international legal frameworks governing water rights. It then examines case studies to highlight the advantages and disadvantages of different frameworks, culminating in suggestions for further development.

The Legal Framework Governing Water:

First,  the UN Convention on the Law of the Non-Navigational Uses of International Watercourses 1997 (“1997 Convention”) is very important, emphasizing the equitable use of international watercourses. The 1997 Convention was the first global treaty to codify international law governing transboundary water resources. The main provision of the 1997 Convention is Article 5(1), which deals with mandating the “equitable and reasonable utilization” of international watercourses by States so as to take into account the other states dependent on such watercourses. At present, there are 40 parties to the 1997 Convention.

Second, the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (“1992 Convention”) is also important and entered into force in 1996. It was initially adopted as a regional instrument for the pan-European region and was opened to all UN Member States in 2016. Since then, its membership has expanded, with 5 countries outside the UNECE region joining this global framework between 2016 and 2021. Article 2 of the 1992 Convention provides that “parties must prevent, control, and reduce transboundary impacts on shared water resources”. Provisions of the 1992 Convention primarily deal with cooperation to ensure a reduction in pollution of transboundary waters and thus, ensuring a safe water supply to everyone. This convention allows states to use transboundary waters in a sustainable way to address water scarcity issues.

In line with general international law, including Article 33 of the 1945 UN Charter, states may choose to resolve disputes through “negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, regional agencies or arrangements, or any other peaceful methods of their preference”. Additionally, the UN Security Council may also require parties to resolve disputes using these methods.

Case Studies and Analysis

The first case is of India and Pakistan, which persists. Neither country has ratified the 1997 Convention or the 1992 Convention. The Indus River, flowing through India and Pakistan, has been a source of dispute since the partition of British India in 1947. The Indus Waters Treaty 1960 (“IWT”), signed between India and Pakistan with the World Bank acting as a mediator, allocated the Ravi, Sutlej, and Beas Rivers to India, while Pakistan was granted the waters of the Chenab, Jhelum, and Indus Rivers. The IWT largely resolved the water conflict between India and Pakistan. However, tensions resurfaced in 1999 when India announced the construction of the Baglihar Dam on the Chenab River, disregarding Pakistan’s concerns about its design. Although meetings of the ‘Permanent Indus Commission’, established under the IWT with representatives from both nations to address treaty-related issues, were held, no agreement was reached. Consequently, Pakistan sought the intervention of a neutral expert appointed by the World Bank. While the expert’s verdict allowed the dam’s completion, it did not fully address Pakistan’s concerns. India has also repeatedly threatened to revoke the IWT, and quite recentlyIndia has suspended the treaty. Resultantly, no agreed framework for water distribution between the two nations exists, risking destabilization in the region.

In the next example of the Nile Basin, where historically Egyptian civilization has had the strongest ties. Competition for water in the lower Nile has been minimal until recently. The 1929 Nile Agreement, signed between Egypt and Britain, granted Egypt exclusive rights to the Nile’s waters and the authority to oversee any upstream water-related projects that could impact the downstream flow. Then, the 1959 Agreement between Egypt and Sudan allocated three-quarters of the Nile’s total water volume to Egypt, leaving the remainder for Sudan. This agreement enabled Egypt to construct the Aswan Dam for electricity generation and irrigation purposes. But other countries in the Nile Basin criticized these two agreements, arguing that they were only in force while they were colonized and that they are no longer legitimate since they are no longer colonized. The construction of the Grand Ethiopian Renaissance Dam (“GERD”) on the Blue Nile, which is the Nile’s primary tributary, marks a significant challenge to Egypt’s longstanding influence over the Nile waters. Egypt fears that the creation of this dam could lead to water scarcity issues in its territory, as it is highly dependent on the Nile water to cater to its population’s needs.

In 2015, Ethiopia, Egypt, and Sudan concluded an Agreement on Declaration of Principles on the GERD, signaling, for the first time, Egypt’s acceptance of the GERD project. The parties also commit to resolving any disputes through negotiations. The parties also agree to utilize their shared water resources in their respective territories in a “fair and appropriate manner,” taking into account all effects of utilization on the other two states. During the 1990s, as a result of many efforts from actors within and outside the Nile basin to create a framework for cooperation, which eventually led to the establishment of the Nile Basin Initiative (“NBI”) in 1999. In 2009, after more than a decade of negotiation, NBl member states adopted a Cooperative Framework Agreement (“CFA”). The CFA does not quantify water allocations but rather provides that Nile Basin states shall utilize Nile waters equitably and reasonably. The principle of ‘equitable and reasonable utilization’ and the principle of protection and conservation of the water resources of the Nile River system are all enshrined in the CFA. At present, with the ratification of South Sudan, the CFA has come into force on 13 October 2024. However, only time will tell whether the CFA will remain intact, as Egypt and Sudan may pose a threat to the CFA in the future, given the fact that they never ratified the CFA.

There are numerous other examples like that of the dispute over the Mekong River basin or the dispute between Turkey and Armenia over the Arpacay River, which have been subdued using principles from both the 1997 Convention and the 1992 Convention.

Recommendations:

The customary international law principles of reasonable and equitable utilization, codified in the 1997 Convention, have been instrumental in resolving numerous water disputes, even among states that have not signed or ratified the convention. However, a significant challenge for the 1997 Convention is its lack of effective implementation. This is partly due to its limited ratification. Despite its critical role in codifying norms of international transboundary water law and marking a milestone in the development of international water law, the convention did not come into force until 2014, 17 years after its adoption. Perhaps, states like China fear their sovereignty would be at risk because of the involvement of Western influence by ratifying the 1997 Convention. The future of the 1997 Convention remains uncertain, as it depends on whether more states choose to ratify it. Nevertheless, broader ratification is essential for effectively addressing global water scarcity. But, even if it is not ratified, the principles enshrined in the 1997 Convention have helped relax many water disputes, including but not limited to the Mekong River Basin and the Nile Basin.

The 1992 Convention has achieved significant success in addressing pollution in transboundary waters, particularly in cases where water distribution was not a point of contention. Notable examples include the Rhine and Danube River Basins, which highlight its effectiveness in Europe. An increasing number of nations are in the process of accession to the 1992 Convention, and numerous initiatives under the Convention are being implemented worldwide. Despite these successes, the 1992 Convention’s global adoption has been gradual. Many countries outside the UNECE region have yet to accede, which continues to limit its impact on a worldwide scale.

In the absence of widespread adoption, regional agreements, such as those established for the Mekong River Basin involving China and downstream states, or the Indus Basin between Pakistan and India, should be pursued. These agreements do appear to be fruitful over time, as we saw how recently the CFA came into force in the Nile Basin. These agreements should incorporate and promote the principles outlined in the 1992 and 1997 Conventions to pave the way for sustainable water management. This seems to be the more effective solution since non-Western states like China may fear Western influence in their region. So, rather than stressing the ratification or adoption of the 1997 and 1992 Conventions, other region-specific agreements should be negotiated with minimal Western influence, so states do not feel a threat to their sovereignty.

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