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Introduction / 1 2 / International Watercourses Law and Its Application in South Asia1.1 Significance of WaterChapter- OneIntroductionWater is a key element for the existence of all kinds of life.Early civilisations in Mesopotamia, Egypt, India and Chinaemerged on the banks of different rivers. 1 Water also hasimportant implications for most religions of the world. 2 TheGanges, for example, is considered holy by millions of Hindus.Thus, not surprisingly, when Saint Narad met the great IndianKing, Yuddhistira, his greeting was directly related to water: "Ihope your realm has reservoirs that are large and full of water,located in different parts in the land, so that the agriculture doesnot depend on the caprice of the Rain-God". 3Water was equally important in the western world; twomillennia ago, the eminent Greek Philosopher, Pinder, said thatthe "best of all things is water". 4 Italian scholar Leonardo daVinci said "water is the driver of nature." 5 Life is impossiblewithout water, and it has been reported that the human bodyconsists of between 60 to 80% water by weight, depending1 D. A. Caponera (ed), The Law of International Water Resources,Rome: Food & Agriculture Organisation (FAO), Legislative study No.23, 1980, p. 6.2 A. K. Biswas, "Water for Sustainable Development of South andSoutheast Asia in the Twenty First Century” in A. K. Biswas & T.Hashimoto, (eds), Water Resources Management Series 4: AsianInternational Waters: From Ganges -Brahmaputra to Mekong, OxfordUniversity, 1996, p. 5.3 Ibid.4 Ibid.5 Ibid.upon the individual. 6 Thus it is quite natural for states, theprincipal actors of international relations, 7 to wish to safeguardtheir interests in fresh waters from the potentially diverginginterests of other riparian states, and to reconcile their interests(insofar as this may be possible). In the present context ofburgeoning population sizes, 8 and increasing demand for scarcewater resources, if this problem is not properly identified,addressed and resolved, there is a strong possibility of conflictsthreatening international peace and security. 9It may be useful at this point to provide a brief overview of theavailability of water resources in its different forms. Thevolume of earth's water supply is approximately 326 millioncubic metres. Of this, 97.5% is salt water (with 71% of theearth's surface being covered by seawater) and 2.5% is freshwater (8 million cubic metres). Of this fresh water, 0.4% is onthe surface and in the atmosphere, 12.3% is underground, and87.3% is in the polar ice caps and in glaciers. 10 Freshwaterresources are an essential component of the earth's hydrosphereand an indispensable part of all terrestrial ecosystems. Thefreshwater environment is characterised by the hydrologicalcycle, 11 including floods and droughts, which in some regions6 S. C. McCaffrey, The Law of International Watercourses: Non-Navigational Uses, Oxford University, 2001, p. 3.7 Lotus Case in PCIJ series A/B vol. 3, p. 17 & the Corfu Channel Casein ICJ Reports 1949, p. 35.8 Supra note 6, p. 5, the population of the world in 1950 was 2.5 billion;it has doubled in less than forty years and the United Nations forecaststhat it could reach some 9 billion by 2050.9 V. Narayan, "‘Water’ the Oil of Next Century" TERI Newswire III,(19), New Delhi: October 1997, pp. 1-5.10 P. Wouters (ed), International Water Law: Selected Writings ofProfessor Charles B. Bourne, the Hague: Kluwer Law, 1997, p. 108.11 A. Dixit, Basic Water Science, Kathmandu: Nepal Water ConservationFoundation, 2002, pp. 2-20. It has been reported that water evaporatesfrom the sea, rivers, and streams, and also a large amount of waterenters the atmosphere by transpiration from plants. The same water
Introduction / 3 4 / International Watercourses Law and Its Application in South Asiahave become more extreme and dramatic in theirconsequences. 12The water going out from the surface of the earth must comeback in equal amounts - a perpetual cycle with no beginning,middle or end. In other words, the watercourse system is anelement of the hydrological cycle, which consists of theevaporation of water into the atmosphere, chiefly from theoceans, and its return to earth through precipitation andcondensation. 13 The volume of groundwater is large and coversa significant quantity of the freshwater system, 14 however, theinternational community (IC) has not agreed upon a setframework of rules on groundwater and there are several issuesthat need to be resolved before such rules will be acceptable toall states. 15 As McCaffrey rightly observed, the area ofgroundwater is still in a primary and inchoate stage:"as such, the law of international groundwater may onlybe said to be, in the embryonic stages of development, .... but this situation should prevail only until a specialregime can be tailored for international groundwater". 16falls as a result of rain, snow and precipitation, which flows over thesurface to percolate into the ground, ground water emerging intostreams and moving within aquifers. In this sense, the relation ofground water and surface water is inextricably interlinked. Thus, thetotal quantity of water has remained stable over the billions of years.12 N. A. Robinsion (ed), IUCN Environmental Policy & Law paper No27: Agenda 21: Earth's Action, New York: Oceana Pub. , 1993, p. 357.13 Supra note 11, p 20.14 Ibid. p. 6, 97% of freshwater remains as groundwater.15 Supra note 10, state practice suggests different practices on groundwater, for example, the USA and Canada deliberately rejected theconcept of the unity of a drainage basin for which boundary waterswere separated from tributary waters flowing into boundary waters.Although, equitable utilisation is the applicable rule on groundwater,the Helsinki Conference placed groundwater at the head of the lists ofsubject that it recommended for further study by the ILA. pp. 299, 274& 269.16 Supra note 6, p. 433.Eventually, it appears that until the full regime is developed onthe issues, groundwater is covered by the rules of equitableutilisation adopted in the UN Convention on the Non-Navigable Uses of International Watercourses (UNCIW). 17Regardless of the definition of a watercourse (WC) in the 1997UN convention, which includes groundwater, 18 there is still alot that needs to be done in order to obtain an agreeable formulaon the issue. With regard to the lack of freshwater, Falkennarhas distinguished four different causes of water scarcity 19 :aridity, drought, desiccation, and water stress.1.2 Uneven Availability and ScarcityIn order to accrue optimum benefits from an InternationalWatercourse (IWC) it must be developed in a holistic,integrated manner, considering the whole length of awatercourse as a unit. This fact itself highlights the significanceof riparian co-operation in order that maximum benefits can beaccrued from an IWC due to its geographical and hydrologicalcircumstance, e.g., a good site to construct a reservoir lies inone country (Nepal), but such augmented water can be used inanother country (India); flood damage can be prevented (Indiaand Bangladesh), and hydropower plants can be constructed inother countries (in Nepal and India). Geography and hydrologydetermine this fact. In fact Nepal owns magnificent gorgeswhere high dams can be built and the Himalayan waters stored,but such sites are not available in India, Bhutan and17 Ibid.18 "Watercourse" means a system of surface waters and groundwaterscontributing by virtue of their physical relationship a unitary whole andnormally flowing into a common terminus. Article 2 (a) of 1997UNCIW, 36 ILM (1997), p. 700.19 R. Clarke, Water: the International Crisis, London: Earthscan Pub.,1991, p. 2, as quoted to Malin Falkner from Stockholm's NaturalScience Research Council.
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