Custom-built solutions for international disputes - What Price Water? - includes related articles on Nile, Jordan, Mekong and Danube Rivers - use of customary laws in resolving water sharing problems in international river basins - Cover Story

Customary law provides a sounder basis than market forces for water sharing in international river basins

Is it any wonder that the English word "rival" derives from the Latin "rivalis", meaning people who live on opposite banks of a river? All of the 214 largest river basins in the world - home to about 40 per cent of the globe's total population - are used by more than one nation. Even the most cordial and co-operative of neighbouring nations have found it difficult to achieve acceptable arrangements for their transboundary surface waters.

As the world gropes for solutions to disputes over water resources, many who are concerned about water issues are increasingly attracted to the idea of setting up free market trading systems for water. However, market solutions to establishing sovereignty over and control of water resources are fraught with danger. Rather, we should look to the body of international law that countries have been slowly developing by drawing on ancient principles of sharing dating back centuries.

It must be noted at the outset that countries have recognized that water is too vital a resource for nations to go to war. Throughout the many wars fought in the twentieth century, water facilities have by and large escaped unscathed. In the three major wars between Pakistan and India, for example, water could have been used as a formidable weapon by both sides. Not only did they both refuse this deadly option, they implemented water sharing agreements even as bullets were flying. Low-level violence punctuated by full-fledged war has been simmering in the Jordan Valley since the 1920s between Israel and the neighbouring Arab nations. Yet you can count on one hand the number of times water supplies have been specifically targeted.

However, the absence of "water wars" does not mean that there aren't serious disputes brewing, particularly in arid regions like the Middle East where already scarce water supplies are in unprecedented demand as populations grow and lifestyles change with greater industrialization. These disputes are generally in the form of diplomatic controversies, although sometimes more dramatic confrontations arise. Every transborder water resource is coveted by the countries that share the resource. They carefully monitor the amounts used by neighbours.

Markets are now much in vogue as ideal institutions for resolving disputes over control of water resources and for managing the use of those resources efficiently. Basically, the aim is to set up a trading system by which water-rich countries sell supplies to those in need. Theoretically, markets ensure efficiency and peace. Countries don't dare waste a resource for which they have paid dearly. At the same time, the market supposedly helps resolve water disputes: if one country infringes on the "property" of another, compensation can be sought in a court.

A resource with no respect for borders

Twenty years ago, few experts or policy-makers would have considered such a proposal seriously. Today, the concept is gaining ground thanks to the active promotion of major lending institutions like the World Bank and other multinational organizations. Part of the enthusiasm derives from the triumph of Western-style free markets and the assumption that there are no credible alternatives for efficiently managing resources. But the market supporters overlook a critical fact: water, unlike every other natural resource except the air we breathe, is ambient. It moves. It doesn't respect borders and so cannot be controlled by any single entity. Yet for a market to work, clear ownership rights have to be recognized before any good can be traded. But how can you determine who owns a resource which ebbs and swells as it moves from one country to the next?

True water markets have rarely existed in the past, and there is little reason to believe they will in the future. A cursory look at the case of the Nile Valley highlights the limitations of market-approaches.

The Blue Nile flows from Ethiopia to Sudan and on to Egypt. As is commonly the case, countries lower down the basin tend to be richer and more developed than those further up. This is because small rivers and streams feed into the river as it flows, bringing water and nutrients that leave the lower basin more fertile. Furthermore, the lower basin generally is relatively flat, while the upper basin generally is mountainous, making agricultural development easier in the lower basin. Indeed, Egypt, with a per capita gross domestic product of $630/year, is wealthier than Sudan (GDP $540/year), and both countries are far more affluent than upstream Ethiopia (GDP $120/year).

Nevertheless, Ethiopia does get the water first. One might think, therefore, that the Ethiopian government is in a position of strength and can do what it wants with the Blue Nile. It could build a dam, for example, or develop irrigation systems. Ethiopia, however, is too poor to pay for this kind of infrastructure on its own. Egypt, which fears any interference that might interfere with the flows of water down the Blue Nile, has succeeded in using its political clout within multilateral lending organizations like the World Bank to block Ethiopia's applications for financial assistance to exploit the river. (The situation may be changing, however, as the Egyptian government recently let pass an Ethiopian loan application with the World Bank for a small-scale irrigation project.)

Who owns what?

Ultimately, Egypt claims an absolute right to the integrity of the river. According to this principle, Ethiopia should do nothing that might affect the quantity and quality of water currently flowing to Egypt. But such a claim deprives Ethiopia of any means of developing its agriculture and condemns the country to continued dependence on international food aid to stave off mass starvation.

Imagine that Egypt and Ethiopia decide to set up a water market. How would they resolve their differences? Ethiopia in theory could buy the right to develop the river from Egypt, although in practice the price of such a right is likely to be much higher than it could afford. Or Egypt could compensate Ethiopia for foregoing the Blue Nile's development-another unlikely scenario because Egypt considers that it already "owns" the waters it uses.

The major flaw in any market "solution" is the failure to determine clearly who owns what. There are groups of water experts and policy-makers in Israel and Jordan, for example, who would like to set up a water trade in the region. On the one hand, the Israelis, who control the source of the vital Jordan River, say that Palestinians should buy water from them. And on the other, Palestinians insist that the Israelis stole the water from them and should now pay for it.

Let's imagine that two countries did manage to clarify any ownership disputes and began trading in water. What about third parties further downstream? Water isn't like mineral resources. Russia can mine coal and sell it around the world and neighbouring countries barely notice. But try selling part of a river from one region to the next without downstream neighbours causing an uproar.

For years, the Turks have discussed a proposal to sell water from the Euphrates to Israel. About 98 per cent of that river's flow comes from rain and snow on Turkey, which has built one of Asia's largest dams to capture and control these waters. However, the Turkish government doesn't have the money to build all the infrastructure needed to use the water for irrigation in Turkey. The Turks could sell the water to Israel or various Arab nations by building a pipeline across Syria to the Jordan Valley or the Arabian peninsula. Perhaps a more realistic option would be to pipe the water to Turkey's Mediterranean coast and then ship it by tanker.

Claims and counterclaims

Such a deal would have serious repercussions for Iraq and Syria, Turkey's downstream neighbours, who depend on the Euphrates. Imagine that Turkey did use the dam's reservoir for irrigation. Downstream nations would still reap benefits because much of the water used would still reach them. Run-off from irrigated fields would feed back into the river, and the water that evaporates in the reservoir and the fields would eventually return through the water cycle. But by shipping Euphrates water outside the valley, the Turks cut off these benefits. The only option available to Iraq and Syria would be to buy the water to which they feel a natural right.

In my opinion, the solution to water scarcity lies not in building water markets but in consolidating the rules for sharing found in customary international law. To better understand the concept of customary law, consider an analogy. Suppose there is a field between two villages. Gradually, most people going from one village to the other come to follow a particular line across the field, perhaps the shortest or easiest route. Their numbers wear a path into the landscape which becomes a road. Eventually, all agree that this road is the only right way between the villages even though no one can say precisely when this notion took hold. At that point, people consider those who take a different path as trespassers. And so we find a legal norm and not merely a factual description of a path.

Today there is a well developed body of customary international law that governs the rights of nations in internationally shared sources of fresh water. That body of law develops through a process of claim and counterclaim, with the nations making the claims appealing to legal rules to establish their rights. All nations agree that only riparian nations - nations across which, or along which, a river flows have any legal right, apart from an agreement, to use the water of a river. Beyond that, however, there are two types of international claim. The upper-riparian nations initially base their claims on absolute territorial sovereignty, typically claiming the right to do whatever they choose with the water regardless of its effect on other riparian nations. Downstream nations, on the other hand, generally make a claim to the absolute integrity of the river, insisting that upper-riparian nations can do nothing that affects the quantity or quality of water flowing.

Equitable utilization

The usual solution to these contradictory claims is found in a concept known as equitable utilization: each riparian nation recognizes the right of the others to use water from a common source. At the same time, there is an obligation to ensure that the way in which one riparian nation uses water does not unreasonably interfere with similar uses of other nations further downstream. Under this principle, countries usually decide on how much water is allocated to one state or another by looking for some more or less objective standard such as historic patterns of use or the amount of land that could be irrigated in each nation. They also take into account "objective" factors, like the need for more water for growing populations.

Customary law does something that the market cannot: it recognizes the unique nature of water. Instead of trying to determine who "owns" what proportion of a river, it lays down a set of rules for sharing.

Of course, there are at least two problems with this kind of informal law. To begin with, the principle is too vague to determine a nation's "fair" share. Second, there is no neutral way of enforcing the rules. So when a violation occurs, the only recourse often available is the law of the vendetta.

But these problems are just part of the natural course of developing any form of customary law. At some point, rules have to be set down on paper and codified. Indeed, nations have hammered out hundreds of agreements in the attempt to define what constitutes fair sharing of a particular waterway. The international community took a major leap forward about a year and a half ago by approving the United Nations Convention on the Non-Navigational Uses of International Watercourses by a vote of 104 to three. It will unquestionably be the leading law governing internationally shared fresh waters once it is ratified by 35 nations - a process that could take a decade or more. The convention provides a set of standards in codifying the rule of equitable utilization based on a long list of diverse factors - from geographic and ecological considerations to the economic value of existing and potential uses of the waterway. The aim is to help arbitrators and judges determine "equitable" sharing, which should not be confused with equal shares.

The convention is a legal document, not a magic formula. Disputes will continue. But instead of resorting to the law of the vendetta, nations can now seek legal resolution. The rule of equitable utilization can also serve to channel the negotiations between riparian neighbours should they prefer to resolve the matter by treaty rather than by arbitration or litigation.

The convention reflects not only logic, but need and power - which amounts to a far more balanced and sophisticated approach to managing water than simply relying on a free market.

RELATED ARTICLE: Four international rivers

The Jordan

The river: The 93-km-long Jordan drains part of the territories of israel, Jordan, Lebanon and Syria, four of the states most involved in regional hostilities in the last half century. It rises in four tributaries, the Yarmouk in Syria, the Banias in the israeli-occupied Golan Heights, the Hasbani in israeli-occupied southern Lebanon, and the Dan in Israel. By virtue of the 1967 war and the "security zone" created in south Lebanon in the early 1980s, Israel is the upstream riparian on the upper Jordan system; Syria is upstream on the Yarmouk.

Problems and prospects: Jordan and the Palestinians, as downstream riparians of Israel and Syria, are in the worst position in the basin. Jordan's dependence on the river system is particularly great, since apart from a few wadis - watercourses that are dry except in the rainy season - it has no other important sources of fresh water. Three attempts have been made to establish an international water management regime (in 1953- 55, 1976-81, and 1987-90) but each came to a halt because of an inability to include all riparian states in the proposed arrangement. A water resources working group was set up as part of the Middle East peace process in 1995 and 1996, but water politics specialist Miriam R. Lowi of the Center of International Studies at Princeton University notes that "the implementation of a water agreement will not be effected until the political conflict has reached closure."

The Nile

The river: The Nile is 6,700 km long from its most distant source to its mouth in the Mediterranean, and drains one-tenth of the African continent. The river system is composed of two major tributaries, the White Nile and the Blue Nile, which rise in Lake Victoria (Kenya, Rwanda, Tanzania, Uganda) and Lake Tana (Ethiopia), respectively. The nine nations of the Nile basin are Rwanda, Burundi, the Democratic Republic of the Congo, Tanzania, Kenya, Uganda, Ethiopia, Sudan and Egypt.

Problems and prospects: The vast majority of the river's flow, estimated at 84 billion [m.sup.3] annually, is used by Egypt, by virtue of a 1959 treaty between Egypt and Sudan which allocates to the two countries an amount of Nile water that adds up to nearly 90% of the river's annual flow. Upstream nations such as Ethiopia want to harness the Nile's waters to provide economic prosperity for their growing population and are challenging Egyptian and Sudanese claims.

The Mekong

The river: From its source in the Himalayan peaks of Tibet, the Mekong flows for 4,200 km through China's Yunnan province (population 38 million) and through Myanmar, Laos, Thailand, Cambodia and Viet Nam, countries populated by around 190 million people, many of them poor.

Problems and prospects: The river flows through an area which has been at war for much of the century. Regional institutions including the Mekong River Commission (Cambodia, Viet Nam, Laos and Thailand) are working to turn the Mekong into a "channel of commerce and prosperity - Asia's Danube", by exploiting possibilities for mutual benefit and opening up a vast new market in this region where cross-border links are often rudimentary. Finance is proving to be a major challenge, however. Some dam schemes to generate hydropower alarm environmentalists who warn of problems ranging from the intrusion of salt water into the delta to loss of rare species. China is building a dam in Yunnan from which electricity may be sent across Laos to Thailand. it claims that the project will help river flow and benefit downstream nations, but there are anxieties among low-lying countries because of the upstream dam's capacity to radically alter the river's flow, which would disrupt ecological balances.

The Danube

The river: The Danube is Europe's second largest river, with a watershed area of 817,000 [km.sup.3] in seventeen countries. The main channel of the river flows through Germany, Austria, Slovakia, Croatia, Hungary, Yugoslavia, Bulgaria, Romania.

Problems and prospects: Pollution by nitrogen and phosphorus from agriculture, and toxic substances from industries and cities. Hungary and Slovakia are still divided by a long-running dispute over the Gabcikovo-Nagymaros dam project that was referred to the International Court of Justice in The Hague. In 1997 the court ruled that both countries were at fault - Hungary when it cancelled work on the project in 1989 and withdrew unilaterally from a 1977 bilateral agreement, Slovakia by diverting the Danube onto its territory without attempting to work out the disagreement with Hungary.

COPYRIGHT 1999 UNESCO
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