UN law can help India and China share Himalayan waters

It was after five decades of negotiations that the UN Convention on the Law of the Non-Navigational Uses of International Watercourses came into force on 17 August 2014, marking an important milestone in international political and legal cooperation in the sustainable use and sharing of trans-boundary freshwater courses.

Interestingly, China and the South Asian countries, with their complex, hydro-geographical features fed by shared Himalayan waters, chose to remain outside the Convention. China voted against, and India and Pakistan abstained from voting. India has international water sharing concerns with Pakistan, Nepal and Bangladesh.

A relatively newer concern is that between India and China over the water resources of the Tsangpo Basin and the Tsangpo-Brahmaputra rivers. These issues figure high on Indian Prime Minister Narendra Modi's agenda during his first official visit to China this month (14-16 May). In 2013, China and India had agreed on sharing hydrological data, which would allow India to monitor flows. In the same year, an agreement on trans-border rivers was signed when former prime minister Manmohan Singh visited Beijing.

Himalayan rivers have sustained Asian civilisations over many centuries and the importance of sharing watercourses remains undiminished in the region's social, cultural and economic activities. Three of the world's major rivers - the Indus, the Ganges and the Brahmaputra - rise in the Himalayas. The Indus and the Brahmaputra rise in Tibet and the Ganges rises in the Indian state of Uttarakhand. Any major stress on water availability either under the climate change scenarios or because of greater demand can only lead to conflict. The question is whether the Convention's adoption will help address water sharing in the region.

The strength of the Convention lies in its nature. Designed as a framework convention, it provides riparian states with different geographies a forum for negotiating water sharing arrangements. To stress the point that it is hydrogeology which matters in planning, the Convention defines 'watercourse' as a system of surface waters and ground waters constituting, by virtue of their physical relationship, a unitary whole normally flowing into a common terminus. This concept emphasises the shared responsibility between riparian states.

India's National Water Policy of 2012 refers to resource planning at a hydrological level and captures the continuing concern that 'groundwater, though part of hydrological cycle and a community resource, is still perceived as an individual property and is exploited inequitably and without any consideration to its sustainability leading to its over-exploitation in several areas'.

The Convention gives a legal basis to consider the basic hydrological unit for planning. India's draft water laws categorically state that water in all its forms constitutes a hydrological unity and that water and water resources include both surface and ground water resources. A tribunal set up in India to adjudicate interstate water disputes has also referred to such a combined understanding of water resources.

A significant influence of the Convention is codification of customary international law principles such as 'equitable and reasonable utilisation' and 'the obligation not to cause significant harm'. It also defines 'equitable and reasonable utilisation principle' that urges the 'states to participate in the use, development and protection of an international water course in an equitable and reasonable manner'.

On the other hand, the principle of 'obligation not to cause significant harm' requires the states to 'take all appropriate measures to prevent the causing of significant harm' to other states harnessing an international watercourse. Domestically, India's Supreme Court and tribunals while deciding water sharing and pollution disputes have used these principles, though there is no legislation in this regard.

Thoughtful of the diverse interests, the Convention urges states to cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilisation and adequate protection of an international watercourse. Further, it provides for establishment of joint mechanisms or commissions, adopting measures like regular exchange of data and information, laying down emphasis on prior notification of planned measures etc. to meet the requirements of the two water sharing principles discussed above.

In respect to dispute settlement, state parties under this Convention can opt for negotiation, or jointly seek request mediation or conciliation by a third party, or make use of institutions established by them, or agree to submit the dispute to arbitration or to the International Court of Justice. The Convention further articulates that in case the dispute cannot be resolved in six months through any of the above measures, there will be a compulsory, impartial fact finding commission, which will have members from each party to dispute. International disputes on resources sharing may gain from the wide-ranging options available for parties under the Convention.

The Convention has consolidated prior knowledge and provides for a comprehensive set of measures to deal with cooperation at the bilateral, multilateral, regional or international level. Sharing Himalayan waters is a contentious issue which needs to be addressed at the political and legal levels. For China and India, the Convention provides a good opening for dialogue.