Floods and Transboundary Rivers

Floods and Transboundary Rivers

Subject: International Relations

Context:

There has been an increase in the magnitude, the frequency and the intensity of floods in many parts of the world. This is further compounded by the lack of transparency in the sharing of hydrological information and also information relating to activities (such as by one riparian state) that are transboundary in their effect (affecting other riparian states), thus serving as an obstacle in understanding the magnitude of flooding.

International obligation in using transboundary natural resources:

No state has to use its territory in a manner that causes harm to another state while using a shared natural resource. Hence there is a binding obligation on all states not to release water to cause floods in other co-sharer of the river water.

International Court of Justice (ICJ) ruling on transboundary rivers:

The ICJ, in the Pulp Mills on the River Uruguay (Argentina vs Uruguay) case (2010), upheld that conducting a transboundary environmental impact assessment (TEIA) of a planned measure or projects on the shared water course is part of customary international law. Further, the ICJ noted that the acting state must notify the affected party of the results of TEIA.

India’s concerns with Brahmaputra:

• China is the upper riparian in the Brahmaputra hence has an apparent leverage vis-à-vis lower riparian India.
• Construction of dams by China and the excessive water release, as a “dam controller”, in violation of customary international law has the potential to exacerbate flooding in Assam in future.
• Lack of comprehensive sub-basin or all basin-level mechanism to deal with water management of Brahmaputra.
• India and China are not party to the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC) 1997 or the United Nations Economic Commission for Europe (UNECE) on the Protection and Use of Transboundary Watercourses and International Lakes 1992 (Water Convention).

Existing mechanism between India and China:

India had signed a memorandum of understanding (MoU) with China in 2013 with a view to sharing hydrological information during the flood season (June to September). But the MoU does not allow India access to urbanisation and deforestation activities on the Chinese side of the river basin.

India and Nepal:

Floods are also a recurrent problem in the Koshi and Gandak river basins that are shared by India and Nepal. The India-Nepal Koshi agreement 1954 (revised in 1966) is aimed at reducing devastating flooding in the river basin. The treaty-based joint bodies have also tried to refine the early warning systems for flood forecasting.

Way forward:

• Procedural norms that support the management of floods, which include notification of planned measures, the exchange of data and information, and also public participation.
• India and other stakeholders like China, Nepal and Pakistan could become a party to either the UNWC and the Water Convention which could lay the groundwork for a bilateral treaty on the Brahmaputra but subject to the reservation that it should not insist on the insertion of a dispute settlement mechanism provision.

The Convention on the Law of Non-Navigational Uses of International Watercourses-

• commonly referred to as the UN Watercourses Convention, is an international treaty, adopted by the United Nations on 21 May 1997, pertaining to the uses and conservation of all waters that cross international boundaries, including both surface and groundwater. It entered into force on 17 August 2014.
• Each member state that shares in a resource is required to provide information to other sharing states about the condition of the watercourse and about their planned uses for it, allowing sufficient time for other sharing states to study the use and object if the use is perceived to be harmful.
• The treaty also requires states to take reasonable steps to control damage, such as caused by pollution or the introduction of species not native to the watercourse, and imposes an obligation on states that damage a shared water resource to take steps to remedy the damage or to compensate sharing states for the loss.

The Convention on the Protection and Use of Transboundary Watercourses and International Lakes  (Water Convention)

• Itwas adopted in Helsinki in 1992 and entered into forcein 1996.
• It is a unique legally binding  international legal instrument and intergovernmental platform which aims to ensure the sustainable use of transboundary water resources by facilitating cooperation. Initially negotiated as a regional instrument, it has been opened up for accession to all UN Member States in 2016.