Given the fact that water is essential to life, transboundary water rights are a critical aspect of international law. As water scarcity intensifies globally due to climate change, population growth, and industrialisation, the importance of effective water-sharing mechanisms cannot be overstated. Water scarcity is still a problem that international law has not adequately addressed. Although there are a number of legal frameworks in place to regulate water rights and encourage sustainable use, they frequently fail to provide equitable cross-border sharing. It is evident from analysing recent accords and actual case studies that urgent reform of international law is required to manage and fairly distribute this vital resource more effectively.
The UN Convention on the Law of the Non-Navigational Uses of International Watercourses 1997 (“1997 Convention”) encourages equitable use of international watercourses. The 1997 Convention was the first global treaty to codify international law governing transboundary water resources. The main provision of the 1997 Convention is Article 5(1) which deals with mandating the “equitable and reasonable utilisation” of international watercourses by States so as to take into account the other states dependent on such watercourses. At present, there are 40 parties to the 1997 Convention.
Next, the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (“1992 Convention”) was initially adopted as a regional instrument for the pan-European region and was opened to all UN Member States in 2016. Since then, its membership has expanded, with 5 countries outside the UNECE region joining this global framework between 2016 and 2021. Article 2 of the 1992 Convention provides that “parties must prevent, control, and reduce transboundary impacts on shared water resources”. Provisions of the 1992 Convention primarily deal with cooperation to ensure reduction in pollution of transboundary waters and thus, ensuring safe water supply to everyone. This convention allows states to use transboundary waters in a sustainable way to address water scarcity issues.
Third, Article 33 of the 1945 UN Charter also provides that states may choose to resolve disputes through “negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, regional agencies or arrangements, or any other peaceful methods of their preference”. Additionally, the UN Security Council may also require parties to resolve disputes using these methods.
Rather than focusing on the ratification or adoption of the 1997 and 1992 Conventions, other region-specific agreements should be negotiated with minimal Western influence, so that states do not feel threatened by their sovereignty.
The India-Pakistan dispute is one which cannot be ignored. Neither country has ratified the 1997 Convention nor the 1992 Convention. The Indus River, flowing through India and Pakistan, has been a source of dispute since the partition of British India in 1947. The Indus Waters Treaty 1960 (“IWT”), signed between India and Pakistan with the World Bank acting as a mediator, allocated the Ravi, Sutlej, and Beas Rivers to India, while Pakistan was granted the waters of the Chenab, Jhelum, and Indus Rivers. The IWT largely resolved the water conflict between India and Pakistan.
However, tensions resurfaced in 1999 when India announced the construction of the Baglihar Dam on the Chenab River, disregarding Pakistan's concerns about its design. Although meetings of the ‘Permanent Indus Commission’, established under the IWT with representatives from both nations to address treaty-related issues, were held, no agreement was reached. Consequently, Pakistan sought the intervention of a neutral expert appointed by the World Bank. While the expert’s verdict allowed the dam’s completion, it did not fully address Pakistan’s concerns. India has also repeatedly threatened to revoke the IWT and quite recently India has suspended the treaty. Resultantly, no agreed framework for water distribution between the two nations exists, risking destabilisation in the region.
Moreover, the disagreement in the Nile Basin highlights how out-of-date colonial-era water accords are. Upstream countries like Ethiopia are increasingly challenging Egypt's control, which dates back to the 1929 and 1959 agreements, particularly with the Grand Ethiopian Renaissance Dam (“GERD”) being built. Other basin governments properly doubt the validity of agreements made during colonial control, while Egypt worries about diminished availability to water. International water law needs to acknowledge shared responsibilities and contemporary sovereignty.
An important development was the 2015 Agreement on Declaration of Principles on the GERD, which demonstrated Egypt's initial official approval of Ethiopia's dam project. Fair use and peaceful dispute resolution were highlighted. The 2009 Cooperative Framework Agreement (“CFA”) and the Nile Basin Initiative previously sought to promote fair water sharing without set quotas. The CFA ultimately went into effect on 13 October 2024 when South Sudan ratified it. However, Egypt and Sudan, who still oppose the CFA, threaten its future. Ultimately, all basin states must pledge to prioritise equity over control in order to truly cooperate.
There are numerous other examples like that of the dispute over the Mekong River Basin or the dispute between Turkey and Armenia over the Arpacay River which have been subdued using principles from both the 1997 Convention and the 1992 Convention.
The customary international law principles of reasonable and equitable utilisation, codified in the 1997 Convention, have been instrumental in resolving numerous water disputes, even among states that have not signed or ratified the convention. However, a significant challenge for the 1997 Convention is its lack of effective implementation. This is partly due to its limited ratification. Despite its critical role in codifying norms of international transboundary water law and marking a milestone in the development of international water law, the convention did not come into force until 2014, 17 years after its adoption. Perhaps, states like China fear their sovereignty would be at threat because of the involvement of western influence by ratifying the 1997 Convention. The future of the 1997 Convention remains uncertain, as it depends on whether more states choose to ratify it. Nevertheless, broader ratification is essential for effectively addressing global water scarcity. But, even if it is not ratified, the principles enshrined in the 1997 Convention have helped relax many water disputes including, but not limited to, the Mekong River Basin and the Nile Basin.
The 1992 Convention has achieved significant success in addressing pollution in transboundary waters, particularly in cases where water distribution was not a point of contention. Notable examples include the Rhine and Danube River Basins, which highlight its effectiveness in Europe. An increasing number of nations are in the process of accession to the 1992 Convention, and numerous initiatives under the Convention are being implemented worldwide. Despite these successes, the 1992 Convention's global adoption has been gradual. Many countries outside the UNECE region have yet to accede, which continues to limit its impact on a worldwide scale.
In the absence of widespread adoption, regional agreements, such as those established for the Mekong River Basin involving China and downstream states, or the Indus Basin between Pakistan and India, should be pursued. These agreements do appear to be fruitful over time, as we saw how recently the CFA came into force in the Nile Basin. These agreements should incorporate and promote the principles outlined in the 1992 and 1997 Conventions to pave the way for sustainable water management. This seems to be the more effective solution since non-Western states like China may fear Western influence in their region. Therefore, rather than focusing on the ratification or adoption of the 1997 and 1992 Conventions, other region-specific agreements should be negotiated with minimal Western influence, so that states do not feel threatened by their sovereignty.