International Water Law and Climate Change: Avoiding Disputes Over Water

bridges vol. 18, July 2008 / Feature Article

by Christina Leb



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The world is “running out of water”. Even though the planet is water rich, relative to its neighbors in the solar system, little of its water is available to human consumption. About 97% of global water resources is ocean water, and of the remaining 3% of freshwater only about 13% are accessible to humans. Competition over these freshwater resources is growing. Population growth, climate change, economic development and misguided policies lead to increasing water scarcity, a situation which hits some regions harder than others due to the problem of uneven global distribution; almost one-quarter of the world’s supply of freshwater is stored in Lake Baikal, Latin America has 12 times more water per person than South Asia, and an inhabitant of Yemen has 450 times less water available than a person living in Canada.

 

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This problem of uneven distribution is expected to get worse in the future. In its most recent assessment report, the Intergovernmental Panel on Climate Change (IPCC) of the United Nations predicts that the annual average river runoff and water availability are likely to increase by 10-40 percent at high latitudes and in some wet tropical areas, but will decrease by 10-30 percent over some dry regions at mid-latitudes and in the dry tropics. At the same time, IPCC forecasts that water stored in glaciers and snow cover will decline over the course of the century, due to the glaciers’ rapid decline caused by the increase in global temperatures. The world’s glaciers store almost 70 percent of the global freshwater resources, and are thereby our largest freshwater reservoirs.

 

 

Aletsch glacier, Swiss Alps, 1979, 1991, 2002 [http://commons.wikimedia.org/wiki/Image:Gletscherschmelze.jpg]
Aletsch glacier, Swiss Alps, 1979, 1991, 2002

 

 

It is beyond question that climate change also has a strong impact on a large number of international river basins, mainly through considerable alteration of conventional precipitation and river flow patterns. In watercourses, these effects are felt through an increase in the number and severity of flood and drought events and long-term changes in hydrologic flows.

 

In the case of a natural disaster such as a flood or drought, coordinated preparation and prevention measures are essential to limit the damage to humans and infrastructure. This month, the US Midwest has experienced the most devastating flood of the Mississippi River in 15 years. According to a New York Times article, after the 1993 flood, a committee of experts commissioned by the then-Clinton administration issued a 272-page report that recommended a more uniform approach to managing rising waters along the Mississippi and its tributaries, including giving the principal responsibility for many of the levees to the Army Corps of Engineers.

 

But the committee chairman, Gerald E. Galloway Jr., a former brigadier general with the Corps of Engineers, stated in the Times article that few broad changes were actually implemented once the floodwaters receded – and most were forgotten. In his opinion, a broad and comprehensive flood management plan would have helped reduce the present damages substantially.
The Mississippi River flowed [http://en.wikipedia.org/wiki/Image:KatrinaNewOrleansFlooded_edit2.jpg]
The Mississippi River flowed

 

River basin commissions or other basin-wide cooperative mechanisms that are in charge of managing trans-boundary river basins enable riparian states or countries to react swiftly. Adaptation strategies, such as basin-wide early flood or drought warning systems to minimize the destructive effects of climate change on population and infrastructure, can be put into place in those basins with relative ease. One recent example for this is the Danube-EFAS system, which provides the national authorities of countries in the Danube River Basin – the most international river basin in the world – with up to 10 days to prepare for large floods. Examples of national response measures include opening temporary flood retention areas, building temporary flood protection structures such as sandbag walls, and civil protection measures such as closing down water supply systems (to avoid contamination) and evacuating community residents.

 

The recent flooding in the US Midwest only affected states within the US, namely Iowa, Illinois, and Missouri. However, in the case of international watercourses, we find even more precarious situations with respect to mitigating potential damages in the affected states if they are not yet placed under basin-wide management mechanisms: Their adaptive capacity is even more reduced due to the lack of institutionalized state cooperation. In many cases the absence of basin-wide management mechanisms is additionally accompanied by a lack of financial resources for water resource development and mistrust among riparian states. This holds especially true in the cases of many developing countries.

 

A Lesson learned from the past: the Aral Sea basin example

Orphaned ship in former Aral Sea, near Aral, Kazakhstan [http://upload.wikimedia.org/wikipedia/commons/7/7b/Aralship2.jpg]
Orphaned ship in former Aral Sea, Kazakhstan
The costs of non-cooperative behavior and the absence of an agreement among riparian states on how to manage their shared waters are showcased by the ecological disaster in the Aral Sea basin, which is fed by the Amu and Syr Darya Rivers. The deterioration of the basin’s environment had started during the era of the Soviet Union and was further aggravated by the increase in the number of riparian countries after its break-up.

By the 1990s, the Aral Sea received less than one-tenth of its original flow, the waters were contaminated, and it had lost four-fifths of its fish species. Competition among the newly independent states over the utilization of the rivers’ water resources led to further decrease in river runoff and continued shrinking of the Aral Sea. Only recently has this trend been turned around, and the northern part of the sea is being restored as part of a regional Aral Sea Basin Program.

 

The Himalayan Rivers

 

Asian Rivers (Map Data Copyright: Google and Europa Technologies)
Asian Rivers

 

 

One of the regions that will be seriously affected by the impacts of climate change is the region of Central and Southeast Asia, which encompasses the seven great international river systems of the Himalayas: the Amu Darya, Indus, Ganges, Brahmaputra, Irrawaddy, Salween, and Mekong Rivers. Glacial melt in the Himalayas is projected to lead to an increase in flooding and rock avalanches in the next two to three decades, followed by considerably decreased runoff. Decrease in freshwater availability, particularly in the large river systems of Central and Southeast Asia, is expected to affect nearly 1 billion people by 2050. Densely populated Bangladesh, which lies at the mouth of the Ganges and Brahmaputra rivers, will be hardest hit, not only by the alteration of river runoff due to changes in precipitation patterns and glacial melt, but also by rising sea levels.

 

The above scenarios require a concerted response and joint adaptation planning by affected watercourse states. The science is clear: Hydrographic basins are best and most efficiently managed based on a one-basin-one-unit approach. This way, benefits can be maximized and water management infrastructure installed where it can be most efficiently operated. Yet, what is scientifically most efficient is often difficult to achieve in practice. The vital character of water for national economies and its strategic value lead to sub-optimal water resource development in many river basins. States that are vested with relatively more political and economic power than their co-riparian states tend to favor unilateral development of the shared waters for their own benefit over basin-wide cooperation and compromise for the benefit of all.

For the time being, management of the high seasonal flow variations in the Ganges-Brahmaputra basin, which is shared by Bangladesh, Bhutan, China, India, and Nepal, has been rather difficult due to the absence of a basin-wide management mechanism. However, some bilateral treaties exist on the Ganges River; notably the 1996 Treaty between India and Bangladesh on water-sharing arrangements during the five dry months of the year, and treaties between India and Nepal on the Gandaki, Kosi, and Mahakali tributaries. The strong political and economic position of India in the region is evident in these treaties; consequently they leave this country with relatively great freedom to use the shared waters to its own economic advantage.
A successful example of an international legal agreement: the Indus Water Treaty

On the Indus River, the 1947 partition put most of the headwaters, including the infrastructure which controlled the water flow of the two main irrigation canals of the West-Punjab, in India. Thus, Pakistan’s breadbasket region was almost completely dependent on water supplies that were physically controlled by India. Arguably, only the Indus Water Treaty, which the two countries concluded in 1960 after ten years of negotiations, prevented a war over water. This treaty apportioned the waters of key tributaries equitably between the two countries and included a third-party financing guarantee for additional water infrastructure that would increase the water flow available to the two countries. The Treaty is evidence for the potential longevity of international legal agreements and the issue-specific stability they can provide in state relations, once they are concluded.

The Treaty has survived two wars and has been upheld by India and Pakistan up to the present; its dispute-resolution mechanism, the appointment of a neutral expert, has been used by the parties to peacefully settle their differences over their shared water resources. While the primary objective of the 1960 Indus Water Treaty is to guarantee sufficient water supply for agriculture, the cooperation channels that have been established by it are likely to also prove useful in the countries’ responses to hydrologic variability induced by climate change.

 

Brahmaputra [http://upload.wikimedia.org/wikipedia/commons/e/ee/Brahmaputra6.JPG]
Brahmaputra
The frequent occurrence of catastrophic floods in Bangladesh, with their high death tolls, points to the fact that the joint management of water flow is not yet a priority in the basin. It remains to be seen whether this attitude will change as the severity and number of extreme weather events is increasing.

 

While regional agreements on trans-boundary water resource management and development are absent in the Irrawaddy and Salween River basins, riparian countries of the Mekong River are moving towards a more formalized basin-wide framework for cooperation. Four of the six riparian states are members of the Mekong River Commission, which has its legal basis in the 1995 Agreement on Cooperation for Sustainable Development of the Mekong River Basin. China and Myanmar, the two non-members, have been dialogue partners of the Commission since 1996.
Mekong River Delta, Vietnam, looking towards the southwest [http://en.wikipedia.org/wiki/Image:Mekong_delta.jpg]
Mekong River Delta, Vietnam, looking towards the southwest

 

More recently, this informal cooperation has been strengthened by an agreement between the Commission and China for the regular provision of water-level data. The hydrologic data which is now provided by the upstream riparian states and then fed into the Commission’s flood forecasting system has enhanced basin-wide preparedness to respond to flow changes.

 

The experience of the seven great international river systems of the Himalayas shows us well that river basins in which riparian countries have agreed on some sort of cooperative mechanism for joint water resource management and development, are better placed to deal with changes in precipitation and flow patterns, no matter whether these are human induced or due to natural causes. Thus, they are also better prepared to deal with the impacts of climate change. This cooperation can be based on international development financing (Aral Sea), legal agreements (Mekong), or both (Indus). The advantage of international treaties lies in their durability and in the stability they can provide to state relations. Although policy cannot prevent a natural disaster such as a flood or drought, at least it should try to prepare in the best way possible to minimize the damages to humans and to infrastructure.



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The author, Christina Leb, is a researcher at the Law Faculty at the University of Geneva, Switzerland, and works as an independent consultant in the field of transboundary water resources management and international water law with international governmental and non-governmental organizations such as the World Bank and World Conservation Union (IUCN).

 

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