Steal for it, shoot for it or sign for it - Stark choices facing a world running short on water
Which competing states own the water that crosses, forms or lies under their borders? What mechanisms exist to stop water being held, diverted, or polluted by one country to the disadvantage of others? What remedies exist if this happens? What basis can there be for the sharing and management of such water for the maximum mutual benefit? What usually happens when too many demands are placed on limited resources in the absence of any procedures or frameworks for considering claims or resolving disputes?
These are not trifling issues. Half the global land surface area and 40 per cent of global population lies in the catchments of the 263 rivers forming or crossing boundaries. Three quarters of the world’s countries face potential disputes with neighbours over shared rivers, lakes, wetlands or aquifers.
And as the world becomes more and more concerned over the future of water supplies, it is pertinent to note that nearly two thirds of freshwater flows are involved, tied up in rivers such as the Amur, separating China and Russia, and the mighty and multi-state watercourses of the Amazon, Mekong, Congo, Danube and Rhine.
(C) WWF-Canon / Jamie PITTOCK
- Crater Lake National Park, in the headwaters of the Klamath and Rogue Rivers, USA.
Egypt has been ever ready to threaten upstream States on the Nile over any plans they may have for the river. Shortages of water and agricultural land are widely understood to be a key factor underlying the conflict in Darfur and other wars and instability in the region.
India has exchanged harsh words with China over the latter’s failure to give warning of flood and landslide events in Tibet which have caused loss of life along the Brahmaputra. And India is only one of a whole range of south and south east Asian States concerned about Chinese plans for power generation and water diversions in the headwaters and major tributaries of the Brahmaputra and Mekong systems. Potentially affected are Pakistan, India, Bangladesh, Myanmar, Thailand, Laos, Kampuchea and Vietnam.
Placating power of water agreements
But, India and Pakistan have fought three wars without unduly disturbing the delicate system for distributing the waters of the Indus. This is a remarkable tribute to the potential of international and regional legal instruments to govern arrangements for sharing and caring for international water systems.
Diplomacy over water is hardly new – indeed, arrangements to share water and cooperatively build and operate irrigation systems are now believed to have been among the earliest and most influential precursors of social and political organization from China and South East Asia to Egypt and Mesopotamia and over to central America.
A recent publication by UN Water also notes the placating power of water agreements, noting that in the past 60 years there have been only 37 cases of violence between states over water, which is linked to the presence of 300 international agreements. The publication also notes however that nearly two thirds of international river basins and aquifers are not covered by any form of agreement.
Not all agreements are equal or adequate, however. Problems have endured from poorly formed and inequitable agreements where one party gets the bulk of the water, such as those the colonial British drew up for the Nile and those over border rivers separating the United States and Mexico. Cooperative management frameworks exist for only about 40 per cent of the world’s international watercourses. Most are only partially covered, with about 80 per cent of these agreements involving only two parties. The lack of unifying principles behind agreements gives multi-river states problems with administration of inconsistent arrangements from one river basin to another.
Work to resolve these issues started well over 60 years ago and resulted in noted members of the International Law Commission being tasked with coming up with a framework for an international agreement that could not only reduce the potential for conflict but also help shape and guide equitable sharing and appropriate management of international waters.
Their efforts came to fruition in 1997, when an overwhelming majority of countries in the UN General Assembly voted for an International Convention on the Non-Navigational Use of International Watercourses (the UN Watercourses Convention).
The Convention’s aim was to “ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilisation thereof for present and future generations”. This was to be accomplished by procedures for notification of planned measures and exchanges of information on the overall health and status of river systems as well as the events such as floods likely to be of interest to downstream neighbours.
Consistent with the UN’s charter, states are bound under an “obligation to seek peaceful settlement of disputes”. They are also encouraged to adopt compatible management schemes for shared water basins and measures for dealing with extreme river events such as floods.
Some debate has persisted over whether “the principle of equitable and reasonable utilization and participation” should take precedence over the “obligation not to cause significant harm”, or vice versa.
Overwhelming support, minimal action
Voting for the Convention were 103 countries (with another three later notifying a yes vote). Voting against were just three nations, Burundi, China and Turkey. There were 26 abstentions.
The convention was to come into force once ratified by 35 countries. However, the UN Watercourses Convention has languished in limbo, with only 16 signing up in the first decade after its passing – Finland, Germany, Hungary, Iraq, Jordan, Lebanon, Libya, Namibia, Norway, Portugal, Qatar, South Africa, Sweden, Syria and Uzbekistan.
International conventions sometimes do take some time to gather sufficient signatories to come into force but the slow progress of the UN watercourses convention has puzzled many observers of the international scene.
Possible reasons advanced have included “treaty congestion”, a lack of knowledge about the convention in critical areas of government in some developing countries, and the reflection of core convention principles in what is termed “customary international law” in the area.
Only one or two countries continue to express public opposition to it, going to the extent of trying to clamp down even its discussion on the convention at related international meetings. But behind the scenes it is clear that implementation of the convention is the subject of less obvious diplomacy.
In its four page brochure for the 2009 World Water Day 2009 – themed around sharing transboundary waters – UN Water neglected to name the convention, contenting itself with the general observation that more needed to be done to bring all international water agreements into effect. Similarly, the issue of whether to even mention the convention was the most heated of the debates on the ministerial declaration from the 5th World Water Forum.
The convention is also clearly being held up by the reluctance of some leading international players such as the US and UK to engage with it. In the UK, where the defence forces have been told to look at future water war scenarios, former International Development Secretary Hillary Benn told WWF UK that the UK government did not believe “that any potential domestic benefits justify the resources that would be required” and "we need to ensure this does not just place a further burden on governments in our partner countries."
“What resources exactly? What burdens? What partner countries? And what has changed since 1997 when we saw no such impediment?” asked noted science and environment journalist, Fred Pearce. In the absence of any answers he speculated that Britain may be deferring to states that didn’t want unequal water sharing agreements, such as those between the US and Mexico, to come under question.
Even unratified, however, the Convention is exerting considerable positive impact. China, a state opposing it with the words that states had “indisputable sovereignty over a watercourse which flowed through its territory” has nevertheless adhered to some of its principles in water agreements with some of its 15 neighbours. Many other states have similarly drawn on the principles and sometimes even the language in framing bilateral water agreements.
The International Court of Justice has also used the convention as a reflection of international law in the field from the time it was voted on. And the International Law Commission is currently drafting a compatible international legal instrument to give more adequate coverage to underground aquifers.
We think we need this convention now and urgently
With more advocacy from WWF and other groups, awareness of the convention is increasing. In 2009, Tunisia acceded to the Convention and Spain – a significant “upstream” state - took the number of ratifying States past the required half way mark. The Palestinian Authority also signalled its intention to ratify if it attained statehood, meaning that potentially four out of the five Jordan River jurisdictions had committed themselves. A number of new countries are also shortly expected to announce their intent to ratify.
The final word should go to Alfred A. Oteng-Yeboah, of Ghana, who noted at a recent Convention on Biodiversity meeting the high potential for conflict over water in West Africa, where the seven major water basins cross numerous boundaries: the River Niger (in 10 countries), River Senegal (in 4 Countries), River Gambia (in 4 countries), the Chad Basin (encompassing 3 West African and 2 Central African countries), River Volta (in 6 countries) and River Koliba-Kombal (in 2 countries) and also considered the high risk of misunderstanding or conflict in the use of these shared water courses.
“Thus, in the view of Ghana, the importance of this kind of co-operation cannot be over-emphasized, and we understand that there is a strong role for the UN 97 Convention on the Law of the Non-navigational Uses of International Water Courses in the removal of risks of misunderstanding and conflicts associated with use of such water courses.
“We think that we need this Convention now and urgently so and it should enter into force as soon as possible to be able to perform the roles ascribed to it.”