Transboundary water governance: Lessons for South Asia

September 3rd, 2012

Dr. Kishor Uprety, World Bank Legal Department, United States

The hydro-diplomacy throughout Bangladesh, India, Nepal, and Pakistan has been acrimonious, at best. The division of the basins resulting from decolonization, subsequently complicated by political changes, created friction among the riparians of the Indus and the Ganges, leading to intrastate and interstate conflicts.1

Conflicts revolve mainly around sharing. These conflicts are originated by the ambition to control supplies and ensuring demands, both upstream and downstream. Indeed, the Indo-Pakistan Indus Treaty (1960), the Indo-Nepal treaties regarding the Kosi (1954), the Gandaki (1959), and the Mahakali (1996), and the Indo-Bangladesh Ganges Treaty (1996) have markedly suffered during implementation.

While most of the above treaties focused on sharing, some also emphasized an integrated approach, including flood control and irrigation. And if some conflicts were held hostage to thorny political legacy, others had to tackle the issues of hydrology, competing needs, demands and flow management, including the legal framework that undermined the stakeholders’ genuine concerns. Nonetheless, one common message ensuing from the South Asian experience is that conflicts should be resolved through cooperation between those concerned. With overly contextual and dynamic governance systems (differing importance, scope, procedures, management style) along with unique characteristic of each watercourse, transplanting outside legal systems to address local problems defies efficiency. The instance of failure to implement imported laws is high since transplantations cannot easily be tailored to local contexts and an all-encompassing solution is inconceivable. The South Asian countries are better off devising their own solutions in the future, taking the elements of others’ experience into account.

Adaptive Availability Management

Research reveals that a change in environmental conditions that outpaces the capacity of existing institutions to cope with such change is a cause of tension. Indeed, low water levels of the Ganges in 1997, threatened the continuation of the Ganges Treaty, signed just one year earlier.2 Conflicts related to sharing remain unresolved due also to lack of norms to manage water-flows and flexible mechanisms to deal with changes. Downstream riparians, often stressed by development occurring in upper parts of the basins, feel vulnerable to rising flow variability and favor the use of variability management mechanisms. A study3 examining such use has confirmed the success of adaptive governance, achieved through the incorporation in water treaties of such mechanisms.

The countries’ capacity to adapt to flow variability depends on the degree of their systems’ flexibility, which is the ability to change the rules of the game, or the option to apply policies when conditions change. This premise was actually acknowledged by the Neutral Expert while issuing a Ruling on the Baglihar dispute concerning the Indus.4 Transboundary agreements being rigid instruments entailing high opportunity costs for modification, flexibility in design can be helpful5 in reducing the sovereignty costs of negotiations and allowing regime improvement, even with pending issues.

Regularizing communication and data exchange through joint entities can further lessen the rigidity of water treaties and reduce the potential impacts of flow variability by permitting early identification of future trends and offsetting the problem of asymmetrical information sharing. It can further waive the need to codify, during negotiations, the exact quantum of current and future resource-sharing, thereby reducing the transaction costs of agreements.

With constant variability and increasing vulnerability, the ability of countries to adapt depends upon the effectiveness of the mechanisms incorporated in water agreements. Countries have built mechanisms to allow changing the rules of the game, or to enhance the capacity to absorb shocks; some based on flexibility while others on enforceability.6

Rules for modifying the level of availability provide an alternative to allocation. Efforts herein are made to change the water levels by jointly developing infrastructure to either increase or decrease supply. This mitigates the risks inherent to changing supply-demand conditions, and reduces the possibility of protracted conflicts.7 Riparians, while taking joint measures to increase supply, may avoid specifying, in the agreements, the form of the action. Bangladesh and India, for instance, stated their intent to increase water supply of the Ganges during dry periods but avoided specifying the modalities. Similarly, establishing a joint flood control and warning systems to manage unexpected flows, thus addressing the opposite force of variability (i.e. flooding), can also be useful.

Flexible Allocation

Codifying water-allocation in an all-acceptable manner is a challenge, since it affects the resilience of agreements. Countries commonly tackle allocation through:

The direct method, under which the division of the quantum of waters is explicit, implies establishing a correlation between water availability and percentage-flow and including a provision in the agreement that in the case of insufficiency, the deficit will be recouped later; The indirect method, under which a process for allocation is established, but without specifying the quantities or proportions of shares; or, The formula-based method, under which only broad principles for determining water allocation are included in the agreements (e.g. equitable, reasonable, rational and sustainable use, the requirement not to cause significant harm and the protection of existing uses).

South Asia, which exhibits a mix of these, needs to find itself an adequate method for future deals.

Package-Deal

Since countries accord varying level of priority to problems, broadening the scope of cooperation to go beyond water allows concessions on specific issues in exchange for gains on matters they perceive as higher priority. Concurrent discussions on multiple elements of one or several treaties can allow trade-offs as one possible mechanism for averting conflicts. The stakeholders will be careful on the gamut of issues before defecting from a treaty when conditions change, since, because of inter-connectivity of issues, they will have more to lose. This reality underscores the advantage of an integrated approach.

Integrated Development

Regime management has been a challenge for South Asia, especially due to sovereignty concerns, competing demands, and mistrust. This has incentivized countries to take a defensive posture that, instead of facilitating, tends to impede cooperation even on otherwise non-controversial areas. But relentless regional competition for more water is sure to increase, and a change in approach will be warranted. Therefore, the time is ripe for these countries to proactively foster integrated regional cooperation based of international law and practices. This may mean a paradigm shift: from country to region-centric water resources management.

References:

1. Salman, S. and K. Uprety (2003), ‘Conflict and Cooperation on South Asia’s International Rivers – Legal Perspective’, World Bank.

2. Uprety, K. and S. Salman (2011), Legal aspects of sharing and management of transboundary waters in South Asia: preventing conflicts and promoting cooperation, Hydrological Sciences Journal 56(4): 641-661.

3. Drieschova, E., Giordano, M. and I. Fischhendler (2008), Governance mechanisms to address flow variability in water treaties, Global Environmental Change 18(2): 285-295.

4. Salman S. (2008), The Baglihar difference and its resolution process – a triumph for the Indus Waters Treaty? Water Policy 10(2): 105-117.

5. McCaffrey, S. C. (2001), The Law of International Watercourses – Non-Navigational Uses, Oxford.

6. Dinar, S. (2005), Patterns of Engagement: How States Negotiate International Water Agreement, International Institute for Applied Systems Analysis, Austria.

7. Wolf, A. (1999), Criteria for equitable allocations: the heart of international water conflict, Natural Resources Forum 23(1): 3-30.

Dr. Kishor Uprety holds a Law Degree from the Tribhuvan University, Nepal, and a Diplome D’Etude Suprerieure & a Doctorate from Sorbonne University, Paris. He is currently a Senior Counsel at the World Bank’s Legal Department. Dr. Uprety has published a number of books and articles on the issues of international water, public international law, trade and transit, and development. Opinions expressed herein are those of the author and should not be attributed to the World Bank. For more information, please contact Kishor Uprety at Kuprety@worldbank.org.

The views expressed in this article belong to the individual authors and do not represent the views of the Global Water Forum, the UNESCO Chair in Water Economics and Transboundary Water Governance, UNESCO, the Australian National University, or any of the institutions to which the authors are associated. Please see the Global Water Forum terms and conditions here.