Sharing is Caring: Legal Frameworks and Paradigms Governing Transboundary River Basins
April 14, 2015
Human civilization has long been tied to water, from the ancient civilizations that sprung up along the banks of rivers to our modern day society where demand for freshwater is increasing every year at a rate of 64 billion cubic meters. Water transcends boundaries, but its ownership is complicated by its transboundary nature. There is a dearth of legal frameworks concerning transboundary waters particularly transboundary river basins. Nevertheless, there are several paradigms that can be used to understand the current approaches to transboundary water policy, and we explore these paradigms in this report.
What Are Transboundary River Basins?
Transboundary river basins represent one important example of transboundary waters. More generally, transboundary waters refer to any freshwater resource that is shared between at least two nations. These include transboundary rivers, lakes, inland waters, and aquifers. Across the world, there are 263 transboundary lake and river basins, which collectively make up about 50% of the earth’s land surface and about 60% of global freshwater flow.  With freshwater resources becoming increasingly valuable, the management of transboundary river basins will only become more critical. In terms of impact on human populations, 40% of the world’s population lives in transboundary river and lake basins and 90% in countries which have transboundary river and lake basins.  Hence, issues relating to transboundary river basins affect the majority of the world’s population to varying extents. On a national level, 145 countries have territory in transboundary basins, and 30 countries exist entirely within them.  As a result, bilateral, regional, and international agreements are critical to ensuring cooperation between countries sharing transboundary basins.
Overview of Legal Frameworks
The history of water legislation extends as far back as 2500 BC when two Sumerian city-states signed a water treaty to end a dispute on the Tigris.  Since then, there have been numerous water treaties regarding international water resources. According to the Food and Agricultural Organization of the United Nations (FAO), since 805 AD there have been 3600 such treaties; most of the 3600 concern navigation and boundary demarcation of these resources. Recently there has been a shift in focus in the legislation towards the “use, development, protection and conservation of water resources.” 
Shared water resources have more often been a source of cooperation than conflict. Since 1948, there have been 37 cases of water conflict, but 295 international water agreements signed.  Furthermore, even if two countries are engaged in a conflict, legal agreements over water sharing often persist. For example, through the Mekong River Commission Cambodia, Laos, Thailand and Vietnam have cooperated since 1957 and had technical exchanges even during the Vietnam War.  Similarly, the Indus River Commission persisted despite two wars between India and Pakistan.  However, 60% of the world’s 276 transboundary river basins lack any sort of cooperative management framework.  Furthermore, to date, there are only three major international legal frameworks governing transboundary river basins.
1966 Helsinki Rules
Published in 1966, this was the first attempt to codify laws concerning transboundary rivers.  Essentially, the rules aimed to formalize the customary international law surrounding these resources.  The Helsinki Rules proposed that an entire basin should be treated as one unit. The two main principles put forth were “equitable utilization” and a “commitment not to cause substantial injury to co-riparian states”.   Under equitable utilization, each country was entitled only to an equitable share of the waters in the basin, and through the second clause, each country is expected to execute policies without negative impact to others.  There is some ambiguity over these core principles, which may be seen as contradictory. For instance, an upstream country could use the “equitable share” principle to say it has a right to a previously underutilized share of the resources. If harmed by this new claim on a transboundary river, the downstream neighbor could counter with an assertion that the upstream country is violating its “commitment not to cause substantial injury.” The Helsinki Rules give little clarity as to how to resolve such a conflict. 
1997 Watercourses Convention
In 1997, the United Nations General Assembly adopted the Convention on the Law of the Non-Navigational Uses of International Watercourses, typically called the 1997 Watercourses Convention.  It is the only universally applicable treaty about shared freshwater resources with a framework of principles that can be adapted to different local contexts. It confirms the core principles of the Helsinki Rules and also outlines a host of other regulations for the management of transboundary waters. However, it is still not in force because it has not been signed by 35 countries, the target number for the convention.  Just as was the case with earlier international legal frameworks, the convention has been criticized because of unresolved ambiguity over its core principles.
Paradigms in river basin accords
Lenard Milich and Robert Varady of the Udall Center for Studies in Public Policy at the University of Arizona have developed four paradigms that can be observed in historical river basin accords.  The first is the technical/scientific paradigm. In this paradigm, the management of the resource is placed in the hands of experts, such as when control over river basins is given to organizations managed by hydrologists and engineers. The second is the regulatory paradigm, which is similar to the technical paradigm. Here you want to enforce existing environmental regulation very strictly. However, the difficulty is that uniform national standards may not always suit the local context. The third is the closed paradigm. In this paradigm, the public (including NGOs) is excluded from participation by technocrats, officials, and diplomats. Finally, there is the top down paradigm. This paradigm values ratified international agreement over domestic laws and operates under the assumption that the interests of different regions in a nation are uniform. Of course, there can be problems when it comes to implementation when sufficient enforcement mechanisms do not exist at the international level. There are legitimate questions about whether the UN, or other supranational governing bodies, can successfully induce adherence to international standards and decrees.
A separate framework that can be used to describe river basin accords is the hydro-hegemony framework. This framework is based on the assumption that political power between the different parties may be asymmetrically distributed.  In such cases, the concern is that the dominating state will receive a more than equitable share of the water resources because they have the upper hand in negotiations. Many have classified China in the context of hydro-hegemony because of the leverage that the country holds over neighbors with regards to water and its aggressive harnessing of water resources for national development.
China and Transboundary Waters
While the media has focused on China’s water shortage, the country is also the largest source of transboundary river flows, many of which stem from the Tibetan plateau.  In fact, 3.5 billion people in Central, South, and East Asia depend on these rivers; hence Chinese river management has huge implications.  China has a very technocratic approach to its water management. It has built the greatest number of dams in history (more than the rest of the world combined) and constructed the world’s largest water diversion project.  Its planned $635 billion investment in water infrastructure in the next decade indicates this approach will persist.  Without consulting first with neighboring countries, China has begun to construct its dams on transboundary rivers (e.g. Brahmaputra, Mekong), creating political tension. They reject the 1997 UN convention, stating an upstream power has absolute sovereignty over the waters in its territory, and hence has the right to divert entirely at its own direction.  Consequently, China has refused to enter into any bilateral water agreement with any of its neighbors and is in fact in water disputes with most of them. Inequality in power threatens stability in the region through water policies, a concern only exacerbated by the fact that Asia is the most water-stressed continent. Asia is set to face challenges such as climate change and growing demand for freshwater, which will only further undermine stability.
The issue of managing transboundary river basins is complex. Most agreements espouse principles such as “equitable utilization” and call for cooperation between countries sharing the resource. However, the challenges surrounding the management of transboundary rivers exemplify wider issues in managing shared environmental resources. Whether it is shared land, air, or water, it can be very difficult to forge international agreements that are adhered to. When the incentives are such that a country stands to benefit by polluting or depleting shared resources at the cost to neighboring countries, who or what stands to protect those neighboring countries and environment at large? The challenge of developing efficient enforcement mechanisms at the international level is one, which must be dealt with to solve existing environmental issues and prevent future ones. While water management has historically been largely a positive example of cooperation, shortages and new stresses on hydro-resources could add new pressures to transboundary river policies.
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