1 Introduction to Transboundary Waters by Ashfaq Mahmood

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Introduction to Transboundary Waters by Ashfaq Mahmood Ex-Federal Secretary Water and Power 18 December 2014 (LEAD Cohort 18)

Organization of Talk 1. 2. 3. 4. Illustration of Transboundary Water Issues with Case Studies Approaches to Rights on Transboundary Waters Promoting Cooperation on Water Through Hydro-diplomacy Conclusions

Goals for Water Goals • Harness potential of water for most complete and beneficial use. • Benefits the lives connected with water without limitations of the geographical boundaries. To achieve the goal: • Efficient utilization of water • Manage Transboundary Relations Meanings of Transboundary: • international boundaries • lines of control/cease fire, • In-country boundaries (provinces, urban/rural, divisions, districts, tehsils, villages and also at farm levels), • basin boundaries Next Slides will focus on International Transboundary Waters.

Case Studies – Illustration of Issues (Bird’s Eye View)

Indus Waters for Pakistan after Treaty 1960 R-Q C-J T-P Q-B T-S M-R B-S II S-M

Baglihar Dam on River CHENAB 7

GRAND PLAN : PROJECTS ON THE JHELUM Kishanganga HEP on JHELUM RIVER NEELUM RIV ER L ZI OF CONT ROL E N I L B O R RIVE U R H PO A WULLAR BARRAGE R N . MAHORA H/E NAUSARI (330 MW) N. ATI M D MA POWER HOUSE ERIN N. (9 MW) L. JHELUM URI - II POWER HOUSE DAGWAN N. LIDDAR R. URI H/E (480 MW) SRINAGAR R. (480 MW) WULLAR LAKE JH R LUM URI H/E D NI JHE NG LI N. (240 MW) R RIVE SIN (105 MW) R RIVE EL UM R VE RI RI CH PUN DA NEELUM JHELUM H/E PROJECT (969 MW) KISHENGANGA PROJECT R BU LID MUZAFFARABAD N N. LEGEND RIVER LINE OF CONTROL NALLAH COMPLETED PROPOSED UNDER CONSTRUCTION

Nile River Basin

Nile Issue • Ethiopia contributes about 85% water of Nile • Source of controversy: An agreement of 1929 requires up stream countries to take permission from Egypt before building dam • NBI Launched in 1999 with World Bank playing a key role. The NBI institutional framework consists of three key institutions (Council of Ministers, Technical Advisory Committee and Secretariat. It has many programmes. • Cooperative Framework Agreement signed by five upstream countries in 2010. Later supported by others (not Egypt and Sudan) • Only one article is the hurdle: . The article says that member countries would work together to ensure "not to significantly affect the water security of any other Nile Basin State. " Egypt and Sudan want the article to read "Not to adversely affect the water security and current uses and rights of any other Nile Basin States" without the qualification "significantly"

Bangla Desh---India—Farakka Brage

Mekong River Basin

Approaches to Rights on Transboundary Waters

Typical Transboundary Issues Amongst Riparian States. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Water shares Fear on capability of upper riparian to interfere and control flows (Fear on development of storages and barrages) Rights and obligations of riparians Data collection and communications Safety of upstream infrastructures (glacier bursts, geological weaknesses etc) Flood control Environmental effects, water pollution Aquifers ---- over mining of water Monitoring, metering, water thefts Dispute resolutions--- is Might is Right? Spread of miss-information, provocative statements, media behavior Watershed Management Political Tectonics Disrespect to Treaties

Approaches Towards Water Rights 1. Up Stream Riparians Mindset: Harmon Doctrine –Absolute Sovereignty (India in Indus Basin, France in Lac Lanoux Case, Palestine over West Bank) 2. Downstream Riparians Mindset: Historic Existing Rights , absolute integrity of river—Spain in Lac Lanoux Case, Egypt in Nile (First Egypt, then Sudan and the Ethiopia) 3. Water Sharing Mindset: Need Based (IWT) (arable land, population, existing uses and on going projects) Most issues resolved in this way. 4. New Approach: i. ii. Benefit Sharing Rather than Water Sharing. How about Multi Resource Linkages with non-water factors e. g political/ economic bargains

International Laws • Only recently UN Convention on the Law of the Non-Navigational Uses of Water Courses (UN Convention) 1997 has been ratified on 17 August 2014 and has entered into force. • Legal principles and guidelines are codified by various law bodies as general principles of customary law. The 1966 Helsinki Rules on the Uses of the Waters of International Rivers by ILA is the fundamental document in this regards.

The 1966 Helsinki Rules on the Uses of the Waters of International Rivers • The International Law Association approved in 1966 • It first signalled the shift in emphasis from water allocation to the distribution of benefits, stating • The Helsinki rules state that each basin state is entitled, within its territory, to a “reasonable and equitable share in the beneficial uses of the waters of an international drainage basin” (Article IV). • It then lists (in Article V) eleven factors that are to be considered in determining what is “a reasonable and equitable share, ” Foot Note: The Berlin Rules on Water Resources is a document adopted by the International Law Association (ILA) to summarize international law customarily applied in modern times to freshwater resources, whether within a nation or crossing international boundaries. Adopted on August 21, 2004 in Berlin, the document supersedes the ILA's earlier "The Helsinki Rules on the Uses of the Waters of International Rivers", which was limited in its scope to international drainage basins and aquifers connected to them.

Eleven Factors of Helsinki Rules 1996 • 1. The geography of the basin, including in particular the extent of the drainage area in the territory of each basin State • 2. The hydrology of the basin, including in particular the contribution of water by each basin State • 3. The climate affecting the basin • 4. The past utilization of the waters of the basin, including in particular existing utilization • 5. The economic and social needs of each basin State • 6. The population dependent on the waters of the basin in each basin State • 7. The comparative costs of alternative means of satisfying the economic and social needs of each basin State • 8. The availability of other resources • 9. The avoidance of unnecessary waste in the utilization of waters of the basin • 10. The practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses • 11. The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State

UN Convention on the Law of the Non-Navigational Uses of Water Courses (UN Convention) 1997 Principles 1. Equitable and Reasonable Utilization of shared water resources with specific focus on vital human needs, protection of aquatic environments and promotion of cooperative management mechanisms. 2. Principle of no significant harm Ratification Status • Ratified on ----- Unclear: How to enforce ICJ hears cases if parties agree.

Factors relevant to Equitable and Reasonable utilization • (a) Geographic, 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; • (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.

Promoting Cooperation on Water Through Hydro-diplomacy

International Transboundary Waters & Cooperation • Cooperation is essential for • • Sustainability Equitable distribution Poverty Reduction Peace amongst and within communities, countries, regions • Water cooperation greatly outshine water related conflicts. Water is a Catalyst for promoting cooperation. • Organized political bodies have signed 3, 600 water-related treaties since AD 805, versus only seven minor international water-related skirmishes. The only water-related war between states on record occurred about 4, 500 years ago.

International Transboundary Waters & Cooperation (contd. ) • There are numerous examples where transboundary waters have proved to be a source of cooperation. Nearly 450 agreements on international waters were signed between 1820 and 2007 (OSU, 2007). • Yet 60% of the world’s 276 international river basins lack any type of cooperative management framework (De Stefano et al. , 2010). • Forms of Cooperation • • Rules Regulations, Defining Rights and Obligations Formal or Informal Agreements, Treaties Institutional Arrangements Simple exchange of information to joint management

World Trans-Boundary Water Basins and Treaties • Water is not confined to political borders. An estimated 148 states have international basins • There are 276 transboundary river basins in the world • 64 transboundary river basins in Africa, • 60 in Asia, • 68 in Europe, • 46 in North America and • 38 in South America). • Sharing of 276 Transboundary Rivers by countries • 185 are shared by two countries. • 256 are shared by 2, 3 or 4 countries • 20 out are shared by five or more countries the maximum being 18 countries (Danube). • No of River Basins Shared by One country • The Russian Federation shares 30 transboundary river basins • Chile and United States 19, • Argentina and China 18, • Canada 15, • Guinea 14, • Guatemala 13, and France ten.

Framework of Water Cooperation 1. Setting the stage: Build Confidence and Trust i. iii. iv. v. Exchange of information and data. No emotive statements No political mileage Educate and regulate media Frequent exchanges of experts, academia, opinion makers, civil society etc vi. Joint Activities vii. Propagate benefits of water cooperation 2. Approach : step by step—Relation building and joint studies first 25

Negotiation Stages 1. Adversial Stage (Every one takes position about rights) 2. Reflexive Stage (Need based Positions) 3. Integrative Stage –Interest Based (Water is not a commodity to be divided—a zero sum game. Equitable distribution of benefits should be considered) 4. Benefits can be divided –a positive sum integrative approach(e. g US Canada Agreement)—Rights are not Quantifiable, Needs are.

Hydro-diplomacy • Why Hydro-diplomacy? • To make a paradigm shift from repetitive action—reaction approach, positional fixations, blaming, sloganeering, misperceptions, time consuming dispute settlement to : i. iii. Bring cooperation at the centre stage. Maximize benefits for the people connected with water. Settle principles of future engagements • Concept: • Integrate multiple perspectives (different perspectives: hydrologists, engineers, politicians, economists, sociologists, environmentalists, and people connected with water), consult and involve stakehoders. • Approaches: • • • Bilateral Third party, neutral broker Multilateral and donors International political manoeuvering Track II diplomacy 27

Drivers of Cooperation • Primary Drivers: • Focused Institutions/ Commissions (individual country and joint inter-countries) • Governments • Secondary Drivers • • Media Thinkers, opinion makers, NGOs, Civil Society Research , Academic and other water institutions • Funding 28

Conclusions • Pressure on Water will increase due to competing demands and increasing population. • Transboundary Issues need to be settled in a spirit of cooperation and most optimal use of water. There is a need to move from Zero Sum to Positive Sum Game of maximizing benefits for the people whose livelihoods are connected to waters. • Hydro-diplomacy is the way forward. • Institutional capacity building is needed to develop better understanding of technical, social , cultural , environmental and economic dimensions of waters. • Dissemination of information and stakeholders consultation is important

THANK YOU 30