Solutions of Water Conflicts under International Law

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1 Dr. Matthias Hartwig Max Planck Institute for Comparative Public Law and Heidelberg, Germany New Delhi 5 October 2017

2 Almost 300 transboundary rivers, lakes and aquifers They may become subject to interstate conflicts Originally the issues of these conflicts were related to navigation and trade In the 19 th century river regimes were established by international treaties f.e. for the Danube, the Rhine and the Congo All of these treaties addressed questions of navigation and trade

3 In the 20 th century the conflicts centered more and more on water supply, water sharing, use of water and environmental concerns Thereby the number of conflicts increased exponentially: : 22 conflicts : 38 conflicts Since 1990 :83 conflicts

4 More than 400 bi-and multilateral treaties related to the water supply have been concluded, originally they were focussing on the sharing of the water, not on environmental aspects Among them: the Indian-Pakistani treaty on the Indus river of 1960 The Treaty on the Nile of 1959 between Sudan and Egypt The Treaty on the Mekong river of 1995

5 There are only two universal treaties on this topic 1. UNECE United Nations Economic Commission for Europe: Convention on the Protection and the Use of Transboundary Watercourses and International Lakes (Water Convention): aims to protect and ensure the quantity, quality and sustainable use of transboundary water resources by facilitating cooperation Originally only for Europe, as of 1 March 2016 open for all States Currently 40 member States

6 2. Convention on the Non-navigational Uses of International Watercourses of 1997 Entered into force in 2014, currently 36 member States, few States which are really involved in serious water conflicts

7 Substantive rules under international law related to the non-navigational use of international watercourses: a. Harmon Doctrine: absolute territorial sovereignty: each State is entitled to use the water on its territory at its convenience: today rejected b. theory of absolute territorial integrity: no interference in the course of the water and its use: not accepted

8 Today: equitable sharing/equitable use Art. 5 of the Convention on Non-Navigable Uses: 1.Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. 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.

9 Criteria to be taken into consideration for the determination of an equitable use: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b)the social and economic needs of the watercourse States concerned; (c)the population dependent on the watercourse in each watercourse State; (d)the effects of the use or uses of the watercourses in one watercourse State on other watercourse States;

10 (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g)the availability of alternatives, of comparable value, to a particular planned or existing use

11 No hierarchy between different type of uses of international watercourses, art. 10

12 Protection, preservation and management: No pollution

13 Establishment of bi- or multilateral commissions within the respective watercourse regime Exchange of information Obligation to enter into negotiations in case of conflict

14 Settlement of disputes: Negotiation Use of established organs (commissions) Fact-Finding missions (compulsary) Conciliation Arbitration (optional) Via the International Court of Justice (optional)

15 India Pakistan Kishenganga Arbitration 2013 treaty of 1960 allocates rivers instead of certain quanitities of water No mentioniong of environmental law The arbitration tribunal decided that India was not in violation of the treaty by constructing a power plant as Pakistan which also wanted to build a hydro-electrical power plant had not yet started its project by that time Einvironmental aspects have to be taken into consideration

16 Case before the International Court of Justice Slovakia vs. Hungary (Gabcikovo Nagymaros) taking into consideration environmental aspects in the execution of a treaty

17 Establishment of bi- or multilateral commissions within the respective watercourse regime Exchange of information Obligation to enter into negotiations in case of conflict

18 Significance of international law 1. Increase of implementation, as a foreign State may have a stronger position to enforce the rules Beyond the system of reciprocity which is one of the principles of international law helps the implementation

19 2. Implementation of international law in the relationship between the States in a Federation (India) In Germany famous case: Donausversickerung Seepage of the Danube River Case of 1927: application of international norms in the relationship between States