CO-OPERATION IN THE DEVELOPMENT OF SHARED WATER RESOURCES

CO-OPERATION IN THE DEVELOPMENT OF S H A R E D WATER RESOURCES

R O B E R T D . HAYTON

This article examines the current status of and recent progress in co-operative arrangements f o r the development of water resources shared by two o r more countries. Such arrangements may range f r o m the simple exchange o f data to the design and implementation of major projects and formal resolutions of disputes.

Topics which are of growing concern to river-basin organizations inc lu- de integrated development and management or shared water resources and dealing w i t h the fresh water-marit ime interface.

The art icle indicates that optimum co-ordinated development, use and protection of shared water resources is s t i l l a distant goal, and that increased inst i tut ional izat ion of co-operation is required.

Cet articles passe e n reveu 1'8tat actuel e t les recents p r o g r t realises dans le domaine de la cooperation pour la mise en valeur des ressources en eau communes a deux ou plusieurs pays. Cette coop4ration peut revetir plusieurs forms, allant du simple Bchange de donnees B la conception e t la realisation de projects importants ainsi qu'aux reglements officiels de disputes.

Les sujets qui interessent de plus en plus les agences de bassins compren- nent la mise en valeur et la gestion intbgrees des ressources en eau communes ainsi que les rapports entre les eaux douces et marines.

L'article souligne que la meilleure coordination dans les domaines de la mise en valeur, I'utilisation et la sauvegarde des ressources en eau communes constituete encore un but t r t BloignB e t qu'une r6glementation accrue est nBcessaire.

Este ar t icu lo exarnina la situacion actual de 10s acuerdos de cooperacidn para el desarrollo de recursos hidricos compartidos por dos o mas paises. Tales acuerdos pueden variar desde el simple intercambio de informacibn al diseiio y ejecucion de grandes proyectos y la solucibn formal de disputas.

Los asuntos de creciente importancia para las organizaciones encargadas del desarrollo de cuencas comunes incluyen el desarrollo y administracibn de 10s recursos compartidos y 10s problemas de contencion de aguas sal i nas.

El ar t icu lo indica que la bpt ima coordinacibn o uti l izacibn y protec-

Dr. Robert D. Hayton is a senior professor, doctoral faculty and former Dean of Graduate Studies, the City University of New Yor&, Hunter. He is a consultant to the United Nations on water resources law and institution& He is the author of The Law of International Drainage Basins, with others, and Management of International Water Resources: Inst i tut ional and Legal Aspects.

Or. Hayton holds a Ph.D. in political science from the University of California at Berkeley and a J. D. from New York University.

This article was adapted from a paper presented at the United Nations Interregional Meeting of lnternational River Organizations held from 5- 14 May 1981 in Dakar, Senegal.

Natural Resources Forum 6 (1982) 167-181. All Rights Reserved. Copyright 0 1982 by United Nations. N. Y., U.S.A.

168 Robert D. Hayton

cibn de 10s recursos hidricos compartidos son todavia realizaciones muy remotas y que es necesario mayor esfuerzo para institucionalizar la coope- racibn en este camm.

1 .O. Introduction

The failure to develop and use more efficiently the waters of many of the world's international watercourses operates as a major constraint upon development. Hydropower cannot be made available for needed industry or rural electrification; low cost inland water transportation remains severely restricted; fisheries do not flourish and expand; drought continues to cripple harvests and decimate herds; cultivable land cannot be brought into production; floods periodically devastate wide areas and take many lives; international lakes and streams become polluted. At the United Nations Water Conference' there was a clearly felt need to seek out ways of augmenting and improving co-operation and collaboration among states sharing a river basin or system, which, it was recognized, can only take place effectively through formally structured relations among the governments concerned.2

This article reviews the current state of progress achieved in institutionalized co-operation in regard to the development, use and protection of shared water resources, with a view to examining successes, identifying deficiencies, and outlining approaches for reme- dial action in view of the challenges of our immediate future.

2.0. Assessment of Progress

Water flows according to physical laws, irrespective of political boundaries. However, its use is governed by institutions and patterns of use responsive t o political, social and economic demands. Where national boundaries divide a river basin (the most appropriate physical unit for assessing and managing water resources for various purposes) the basin countries or system states must engage in a co-operative endeavour to rationalize use of the resource in terms of its capacity to meet the full range of the demand that now exist and will arise in the future. Effective co-operation and collaboration for international water resources development, conservation and use require considerable institutionalization, that is, competent organization within and among the aprticipating states, grounded on an agreed legal regime for the system or basin.

A number of these special international legal regimes have been agreed upon and international organization have been established in many regions of the world to facilitate the management of the water resources of international rivers and lakes. Within the frame- work of the treaty regime which established them and which they are called upon to administer, the existing international river organizations perform a variety of functions with varying degrees of authority and effectiveness in promoting and implementing co- operative action. These functions and levels of authority may range from the execution of a specific project on an international river, or the provision of a forum for negotiations among the co-operating states, to the provision of planning, advisory and regulatory

Co-operation in the Development of Shared Water Resources 169

services, and even to various executive responsibilities. The range and effectiveness of the functions and powers vested in existing international

river organizations, along with the scope of the treaty regime on which they are predica- ted are prime indicators of the progress thus far achieved in key areas of institutionalized co-operation for the development, use and protection of shared water resources. These include, in order of increasing commitment to collaboration: consultation, notification and data collection and exchange; water resources utilization determinations; and basin or system planning. Complemantary areas of co-operation include design and execution of projects; design and execution of special programmes for such complex purposes as flood control, pollution abatement, and drought mitigation; and resolution of differences and formal disputes.

2.1. Consultation, notification and data

In the words of the United Nations General Assembly,

In the exploitation of natural resources shared by two or more countries, each State must co- operate on the basis of a system of information and prior consultations in order to achieve the optimum use of such resources without causing damage to the legitimate interests of others?

The sheer fact of creation of an organization through which the parties expect to conduct some or all of their affairs affecting a shared water resource is evidence of the acceptance of the advisability of consultation and implicitly of notification. In the process of consultation, the providing of notification and of information about intended projects and programmes can become almost a routine matter.4

There are numerous examples of express recognition of a duty to consult and to exchange information and data. Formulations and practice vary widely; the experience from, for example, the Senegal, Niger, Kagera, Plata and Lake Chad Basins, the Uruguay, Rhine, Danube, Indus and Puyango-Tumbes Rivers and the Canada-United States Inter- national Joint Commission should prove instructive.

These prior consultations form part of the steadily growing state practice and part of the general internation law applicable to the environment, as well as to international watercourse^.^ The question is whether the provisions for notice and consultation, with which existing commissions work, are adequate, and whether they are being observed in practice. With respect to international watercourse systems lacking an overall organization, the need of the system states for prior notice and consultation arrangements should be evident from the long record of experience.

Exchange of basic, comparable and reliable data and information is an important prelude to and companion of the notice and consultation process. Each co-operating state must maintain an accurate picture of what has been transpiring in the system. The majority of river commission agreements make at least hydrographic or hydrometeorological information and data exchange a fundamental part of the agreement. In a few cases, for example the Indo-Bangladesh Joint Committee created to administer the sharing arrangements for the Ganges waters,6 the river organization is even expected to generate data of its own, which it must then submit to the governments.

There are instances, however, where countries have shown markedly less interest in the


collecting and exchange of data and information than their neighbours, because in their circumstances information from the other, usually lower riparians is regarded as little needed. The lower riparian or riparians may, however, need ample and up-todate data almost desperately. Where extensive and reliable data are needed on a regularly recurrent basis, some quid pro quo needs to be fashoned in order to motivate the reluctant, or passive, party to co-operate.

Another area of inadequacy in the agreements is the lack of recognition of the perti- nence of socioeconomic data for ascertaining the impact and acceptability of planned projects and programmes, as well as for the ongoing monitoring of conditions and changes in the basin or affected areas.7

Sometimes, as in the cases of the Senegal and Salto Grande (on the Uruguay River), flora, fauna and other natural resources are taken into account in the original agreements, but the need for information about affected people was realized only later. The water sector cannot make its full contribution to development programmes - local, national or regional - without the social science findings and projections relevant to water resources. Major mistakes have been made in the past by substantially ignoring the local and human side of projects and programmes.

2.2. Water resources utilization

Optimum utilization of water resources is not an easy goal to achieve in a national context, where water-related national goals and priorities can be in conflict with those entertained by sub-national jurisdictions, and where the latter can even compete with each other for scarce water. Achieving optimum utilization of water resources becomes considerably more complex when more than one state is involved. In addition to compe- ting priorities and different political processes, cultures, and economic systems, different perceptions of national jurisdiction over, or “ownership” of, the resource need to be somehow reconciled if there is to be optimum development of the share resource.

Useful approaches in this respect have included agreement on the equitable utilization of common water resources, or equitable sharing or apportionment, and joint regulation of the uses of these resources so as to maximize benefits and minimize harm for each state.

The equitable utilization approach provides the flexibility needed to accommodate different uses, and re-uses, by several states. Application of equitable principles to sharing in the uses of waters makes it possible to avoid the earlier, protracted arguments about who “owns” the water, to abandon the archaic automatic priority of navigation, to adjust use preferences in the light of economic and social value, to make room for late-developing states or regions, and to take polluting uses into account. The equitable utilization doctrine is widely accepted and is regarded as central to active, development-oriented management of international water resources.’

Of course, equitable utilization or apportionment is only a doctrine to guide con- crete determinations, and application of the principle can be a perplexing, if not contro- verted, exercise. Indeed, the doctrine presupposes some, at least hypothetical, authoritative forum in which the calculations of percentage or volume shares, and regulations for specific uses can be arrived at and the ultimate result given a stamp of approval.


In view of the political overtones involved, authority to approve a chosen scheme for the equitable utilization of a shared water resource seldom, if ever, rests with international commissions, committees or secretariats. Rather, selection and approval are the result of a negotiating process finally concluded either at the highest, policy-making level within the international river organization, with the national interests of each member country protected through the rule of unanimity in voting (for example, the Conference of the Heads of State, and the Council of Ministers, of the Organisation pour la Mise en Valeur du fleuve SCnCgal (OMVS), the Commission of the Kagera Basin Organization, the Mekong Committee), or at the appropriate decision-making level of the individual countries concerned, formally outside and above the international river organization (for example, the International Joint Commission and, in case of an equally divided vote, the Argentine-Uruguayan Salto Grande Commission .’).

In this process, the role of international river commissions, committees or secretariats appears to be confined to investigating the technical or factual core which will provide the basis for subsequent policy-level negotiations, administering agreed schemes for the equitable development or apportionment of shared water resources; licensing of users or works; and drafting of water use regulations.

2.3. Basin or system planning

Along with the acceptance of equitable utilization, some kind of co-ordinated advance planning capability should follow in the case of multiple uses, where water quality has or will become a problem,or where the supply from the shared resources may be insufficient to meet demand.

Although advance planning for a basin or system as a whole is stressed, such planning must begin with consideration and selection, or continuation, of specific projects and programmes, and should terminate with dovetailing of the shared water resources plan with national water plans and planning for other sectors, both national and regional. As costituted, many commissions have quite specialized missions and no overall supervisory organ has been created for the basin. Nonetheless, if no office or body is responsible for the co-ordinated thinking necessary for particular missions and the system, the future is in limbo.”

In some international river commissions, planning initiatives have emerged rather infor- mally from studies carried out at the request of the governments. A prime example of this “unavowed” and unstructured style of planning is to be found in the work of the Interna- tional Joint Commission.’’

On the other hand, few existing commissions have the express authority or the capability to carry on thorough planning. An exception may be the OMVS, whose formal mandate is comprehensive and which includes a Planning and Coadination Directorate charged with preparing a long-range master plan for integrated development of the entire basin.” Another notable exception can be the Kagera Basin Organization, which has been given a specific basin-wide planning mandate, to be fulfilled by a Department of Projects, Planning and Exe~ut ion . ’~

Very few international river or lake organizations have in fact produced an actual comprehensive plan for their water resources or, in fact, engage actively in systematic, periodic


updating of national or regional development plans. The OMVS has been working on its plan intensively. Another potential case is the Gambia River Basin Development Organiza- tion (OMVG), established by The Gambia and Senegal as the product of the Gambia River Basin Development Project, especially significant because all of the territory of The Gambia lies within the basin.14

In some cases the omission of systematic inputs into national water sector and development plans from the co-operating states’ international river commissions reflects an embryonic stage of development of the commission staff or secretariat. Ths , in turn, often results from limitations upon human or financial resources, or both.

2.4. Project design and execution

Whether the challenge is defense against saltwater intrusion, irrigation works, improvement of navigation or any of at least a dozen more conditions that are likely to call for action wi thn an international watercourse system, the mere identifcation and subsequent study or discussion of the problems seldom have impact by themselves. Even the consideration and selection of adequate responses to the problem are futile exercises if the project or programme is never executed. Consequently, everyone interested in optimum utilization of international watercourses and the preservation or improvement of water quality recognizes the need for machinery adequate to carry good intentions and years of study into practice.

This will normally require, among other things, agreed project design criteria and construction standards; definition of the legal status of facilities and of affected areas; agreement on acceptable guarantees for international loans, if any are involved; determination of the legal regime to be applied to contractors and the work force, and of agreed schemes for the operation and maintenance of facilities.

The role of international river organizations in regard to the implementation of agreed co-operative projects can be that of coadination only, by providing a forum for delibe- rations among participating states”, or it can go so far as to include any combination of such operational responsibilities as financing, building and operating the works.16

However, the authority of existing institutions to require, for example, standardization of design criteria and of construction standards may be currently assessed as deficient, or at best marginal. Similarly, calculating and heeding the system-wide impact of, for example, drainage works, weather modification projects and river training works are chal- lenging and complex responsibhties, but few river commissions have thus far been charged with such recondite, supervisory issues.

2.5. Special programme execution

Complex undertalungs such as pollution control, flood control, or siltation abatement are not limited to the construction and operation of a particular facility. They may require, among other things, advance joint planning, gathering and exchange of data, design and construction of inter-related facilities, operation of facilities in a co-ordinate fashon, and regulation of water uses or users. Such programmes tie together various areas of co- operation thus far reviewed separately, and it is worth reviewing at this juncture how


states have dealt with such complex challenges as pollution control, including health management, and mitigation and prevention of harmful effects of water.

2.5.1. Pollution and health management. No one needs to be reminded of the importance of dealing forcefully with the growing problems of water contamination, including that brought about by toxic industrial wastes, and the work yet to be done in the field of water-related disease, including vector control.

The question is whether international agreement, institutional structures, staffing authorizations and personnel1 and equipment budgets are responding adequately to these challenges, including the challenge of controlling the spread of water-related diseases in affected transboundary areas of, above all, tropical rivers and lakes. An assessment of the capacity of international river and lake organizations even to investigate the accele- rating pollution and health hazards discloses another area of serious inadequacy in most cases. None of the earlier institutional arrangements for dealing with shared water resources contemplated that so much time, attention and funds would need to be devoted to pollution or health matters, not to mention the whole gamut of environmental concerns. In one critical case, the response was to create an entirely new international entity to deal with the problem: the International Commission for the Protection of the Rhine Against Pollution.” In another significant case, the response was instead to add environmental protection to the ongoing concerns of an international entity already in place, with considerable structural augmentation: the International Joint Commission, which oversees implementation of the Canada-United States Great Lakes Water Quality Agreements of 1972 and 1978 with the assistance of the Great Lakes Water Quality Board, the Science Advisory Board, and the Great Lakes Regional Office of the Commis- sion.“

Being guided by experts in possession of the latest doctrine and working from a clean slate, several of the developing countries have created in recent years international commissions with rather comprehensive authority, including pollution and health management (for example, the Lake Chad Basin Commission, and the Kagera Basin Organiza- tion). Generally speaking these commissions still lack, however, the necessary capability. To the extent that the national environmental protection agencies are effective, although their interest is by no means confined to water, it could be argued that the international institutions have little to do but exchange information. Such an outlook ignores, among other things, the multifaceted interdependence and interactions within the water resources system, and the need for data compatability among the basin or system states.”

Few if any international river organizations would wish to assume the entire burden of coadination, planning and project and programme implementation for pollution control, preventive health and environmental protection measures.” What may be needed, however, is a more express grant of responsibility to facilitate, if not actively participate in, the harmonization of legislation and of plans and programmes, including regulation drafting and in-the-field measures having application to water. In order to function as the “bridge of co-operation” between or among their governments, all of the commissions studied would require augmentation. In most cases, increased formal authority would be necessary. Above all, the tendency to create separate international institutions to deal with pollution and environmental matters, as an alternative to expanding the scope of


existing institutions, should be given close scrutiny. Last but not least, the underground environment has become of prime concern

to the professionals involved in pollution and health management. Consequently, our international river and lake organizations, beyond the concept of conjunctive use as a water supply matter, will be increasingly confronted with pollution studies that point to the need for controls over what is introduced into ground water and calling for extensive and usually costly testing of ground water.

2.5.2. Mitigation and prevention of harmful effects. Although the fact that water can be the cause of serious injury, even disaster, has long been recognized and dealt with at the national level, for many international watercourses protective and preventive measures and even advance warning systems are still lacking or unco-ordinated.

Thus far, few of the studies done in this area have addressed themselves to the additional problems presented when the harmful effects are interjurisdictional. The physical phenomena are, of course, the same, but the political, legal and institutional problems are more complex. The international legal aspects of floods were taken up in the context of customary situations, that is, where no agreement is yet in effect between the parties covering the subject matter, by the International Law Association, which adopted eight Articles on Flood Control in 1972."

Full recognition of the importance of flood control and other natural hazard mitigation implies sizeable institutional requirements, if the states concerned intend to deal with such harmful effects with any degree of effectiveness. Many existing international agreements on shared water resources contain flood control provisions, mostly in the form of exchange of information via the co-operating states' river or basin organization.22 Express provision for an in-place early warning system is less often made.23 The concern of international river commissions should be the adequacy of their mechanisms for dealing with advance warning of the threat of flood or damage from other natural or man- made hazard, as well as their role in hazard control measures.

Effective treatment of the problems associated with erosion and siltation lead into agricultural, silvicultural and range management practices, almost always beyond the jurisdiction of a water resources body. Correcting the causes of existing siltation, as well as preventive measures, require co-ordinated works and regulatory schemes developed in conjunction with, and most likely enforced by, the appropriate national authorities. There is little evidence that international institutions have been able to make much head- way in this area, even where the silt burden is heavy, as in the Parani-Paraguay sub- basin.*

With regard to saltwater intrusion - including the subterranean intrusions into fresh groundwater as well as the more familiar penetration of maritime water upriver - in many international watercourse systems the problem is serious, as in the Gambia river. In most cases, the cost and the problematic nature of corrective works proposed have held up combating saline intrusion effectively.

2.6. Resolution of disagreement

More intensive use of international water resources systems, and the heightened struggle


against pollution, inevitably means more interaction. Opportunities for friction multiply as co-operating states find themselves disagreeing over project and programme selection, institutional re-organization, or cost and benefit determinations.

In order to avoid disruption of pendinE and ongoing projects and programmes, formal disputes between co-system states should be avoided at all reasonable cost. If the co- operating states have structured their decision-making machinery into various echelons, with emphasis on the early resolution of differences on the basis of fact-finding and expert commissions of inquiry, the ultimate dispute settlement provisions of their agreements should rarely if ever need to be invoked.

The Indus Waters Treaty is the clearest example of the conscious adoption of detailed procedures aimed at early resolution of differences, but with provision for binding settlement of formal disputes if the accommodation mechanisms The smooth functioning of other international river and lake organizations would benefit from the adoption of this approach to the resolution of disagreement, and by the acceptance of compulsory dispute settlement, by arbitration or adjudication, at the instance of any aggrieved party.

3.0. The Outlook for the Future

The deficiencies and weaknesses pointed out in previous sections of this report must be overcome if the needs of the immediate and long-term future are to be met.

One of the most pressing needs for the future is the integrated development and management of shared water resources, including the development, use and protection of shared groundwater resources in conjunction with surface waters. Until recently, and in some cases, to t h s day, the institutional arrangements established decades ago have somehow been able, over time, to resolve many matters affecting projects and works in international rivers. It is clear, however, that the more complex and pressing demands of the near, as well as the long-term, future cannot be contained withn existing minimal institutional structures, competence and capabilities.

With special reference to groundwater, the relationship between surface and groundwater was not perceived by negotiators until quite recently. There are treaties that con- sciously take a systems approach and, in addition, expressly include groundwater.26 Given the continued spread of contamination, ultimately the existence and importance of groundwater resources shared between two or more States, and their interconnec- tion often with surface streams and lakes, cannot be denied, nor will it be possible to exclude shared underground waters from efforts to achieve optimum utilization and the conservation and protection of fresh water resources, most of whch in fact lie below the surface.*' There is more evidence that more and more states are beginning to com- prehend this aspect of the hydrologic cycle.28 The Mexico-United States International Boundary and Water Commission has the subject under study, after widespread realiza- tion of shared groundwater problems along the border.?' Also, the planning, advisory and regulatory functions of the Lake Chad Basin Commission extend to groundwater resources.30

Moreover, the United Nations International Law Commission, composed of 25 eminent jurists chosen from the various regions and legal systems of the world, approved


provisionally in July 1980, initial articles dealing with international watercourse systems and a note describing the Commission’s tentative understanding of the scope of the concept. Parts of that note read:

“A watercourse system is formed of hydrographic components such as rivers, lakes, canals, glaciers and groundwater constituting by virtue of their physical relationship a unitary whole; thus, any use affecting waters in one part of the system may affect waters in another part.“

“An ’international watercourse system’ is a watercourse system, components of which are situated in two or more state^".^'

A number of newer agreements have embraced the integrated management option in principle, and have entrusted it to a joint or international supervisory body.32 TO be sure, embracing the concept is easier than carrying it into practice, for a variety of reasons, not the least of which have been the scarcity of trained water resources managers and technical personnel, and the delays in marshalling funds to support the institutions and the expensive projects and programmes that are likely to be generated in this modern management context.

Another significant challenge is that of dealing with the fresh water-maritime interface, that is, with the consequences of fresh water emptying into the sea. Only occasional- ly, thus far, have fresh water specialists voiced concern for the oceans, the “missing third” or the hydrologic cycle.33

The Third United Nations Law of the Sea Conference’s Draft Convention on the Law of the Sea (Informal Text), addressing protection of the marine environment, contains at least fourteen articles with direct bearing on what the States may do with their international rivers.%

The littoral states of some seas have indeed recognized the problem and, proceeding from a maritime perspective, have drafted treaties that include provisions relating to river- borne p o l l u t i ~ n . ~ ~ Yet, co-ordination between the specialists and agencies dealing with marine pollution from rivers, and the opposite international river organizations has, it seems rarely been ef fe~ted . ’~

Limitations of space preclude the examination of many other areas requiring strengthening of international river and lake organizations if they are to be able to handle the challenges of the future. Foremost among such additional future needs are expansion of the data base for the system on the basis of an agreed design; recruitment and training of qualified personnel for water resources tasks; contingency planning for drought management; and effective comdination, including avoidance of proliferation of unco-ordinated institutions within basins, already apparent in the Plata, the Rhine and the Nile.

Co-operating states’ joint and individual efforts must somehow become more effectual, that is, powerful enough to produce the desired results if the needs of the future are to be met. In the past, high minded intentions and ambitious declarations of policy have sometimes been enunciated without follow-up in terms of institutional machinery or resources sufficient to handle the tasks necessary and proper to the accomplishment of the announced purposes.

In response to the above needs, it is imperative that adequate system-wide supervisory institutions for co-operation be established, where none exist; the over-all supervisory organ be tasked to recommend equitable utilization or apportionment determinations as required by water supply and water quality demands, and to review them continuously;


and those institutions which exist for a section of the system or basin, or at project o r programme level, be entrusted with investigative and planning, as well as construction and operational authority. The following considerations appear to be of relevance in pur- suing the above goals for sustained, institutionalized co-operation:

In addition to the need for a basic will to co-operate, experience indicates that the onset of institutionalization in shared water resources development, use and protection is facilitated by continuing communication among national technical teams engaged in such relatively uncomplicated tasks as the generation and exchange of basic hydrological data and information. The data and information can help countries appreciate the interdependence of their interests in the development, conservation and use of a shared resource, and can alert them to any incompatibility of the projected demands by each country on the water resources and reveal the important interactions of the system. Furthermore, continuing communication among national teams can help crystalize opportunities for institutionalization as mutual trust among the countries concerned increases and the desirability of joint activities is perceived by participating system states.

Once set in motion, the institutionalization process appears to have progressed more effectively where it has focused on issues of mutual interest to the countries involved, and international river organizations have been given a well-defined mandate covering adequately matters of real interest t o each government involved. The process has also prospered in cases in which it has focused on the solution of technical as opposed to political issues, and international river organizations have propared the factual analyses which have formed the basis of subsequent negotiations and agreement at the political

Since the creation, scope, authority, capability and continuity of an international river organization are ultimately dependent upon the interdependence of the states’ interest in the outcome of the organization’s work, the process of institutionalization has been relatively more successful, and states have been more willing to delegate at least some limited degree of authority, in situations where the interdependence of interests in the outcome of a joint institution’s work is clearly perceived by the participating government^.^' T h s has occurred with intensive use of an international waterway for navigation (classical examples being the existing institutional arrangements for the Rhine and the Danube); or with rivers or lakes forming the frontier between neighbouring countries (exemplified by the arrangements in place for the boundary waters of Canada and the United States, and of Mexico and the United States, and for the section of the Uruguay River bordering between Argentina and Uruguay). It has also occurred with integrated, basin-wide, system-wide or sub-basin-wide development opportunities promi- sing greater benefits than comparable national schemes (exemplified by the arrangements made in regard to the Senegal, the Gambia, the Kagera, the Mekong, and the Lake Chad basins). Conversely, the process of institutionalization is slower where countries are unwilling to relinquish any national freedom of action.

In situations where the interdependence of interests is not readily apparent, a systematic study approach may encourage joint institutionalized action.39


4.0. Conclusions

The survey of progress thus far achieved in institutionalizing co-operation in key areas of development, use and protection of shared water resources, discloses that achievement of optimum utilization of theworld’s vital shared fresh water resources is still a far-distant goal and that cautious perceptions of the potential benefits to be achieved with shared water resources management have tended to set rather stringent limits to the scope and authority of international river organizations. The expressed intentions of many governments and the concerted efforts of the international river and lake commissions, as presently empowered and supported, have not produced the results required to achieve balanced development. In some basins or systems there is more progress, of course, than in others. On the whole, however, international rivers and lakes still lack overall management. Moreover, the machinery and resources likely to be committed in the near future cannot realistically be expected to keep up with the multiplying demands for water or the burgeoning responsibilities connected with conflicting uses, pollution and the environment.

What is needed institutionally in the particular stage of development of a specific system of shared water resources varies. What the states are prepared to entrust to joint institutions, even of their own making and even reserving the final power of decision, depends on the mutual trust present in their relations generally, their awareness of the requirements of effective water resources management, and the knowledge and the fore- sight of the countries’ negotiators when the institutions are being fashioned or upgraded.@ At any rate, meeting the challenges that lie adead of us will require a higher degree of institutionalized co-operation than has thus far been achieved.

References

1. Held in Mar del Plata, Argentina, 14-25 March 1977. See Reporr of the United Notions Woter Conference (New York, 1977; Sales No. E.77.II.A.12), esp. Resolution VII of the ‘Mar del Plata Action Plan’, which called for the exchange of information and experience by international river commissions.

2. I. Fox and D. LeMarquand, ‘International river basin co-operation: The lessons from experience’ (United Nations Water Conf. doc. E/CONF.70/A.3,5 November 1976).

3. Art. 3, The Charter of Economic Rights and Duties of States, G.A. Res, 3281, 12 December 1974 (XXIX).

4. This is confirmed in the practice of, for example, the International Boundary and Water Com- mission (Mexico-U.S.) and the Committee for Coordination of Investigations of the Lower Meakong Basin (Mekong Committee).

5 . ‘Draft principles of conduct in the field of the environment for the guidance of states in the conservation and harmonious utilization of natural resources shared by two or more states’, (1978, UNEP/GC.6/17), esp. Principles 5-9; Report of the United Nations Conference on rhe Human Environment (UN Pub., Sales No. E.73.II.A.14), chap. I, sect. 11, esp. Principle 21; L. Teclaff and A. Utton (eds.), International Environmentol JAW (New York. Praeger, 1974).

6 . Art. VI, “Agreement in sharing of the Ganges waters at Farakka and on augmenting its flows”, of 5 November 1917, in Internotional Legal Materials 17 (1978), p. 104.

7. A. Wiener, The Role of Water in Development. an Analysis of Principles of Comprehensive Plonning (New York, McGraw-Hill, 1972).

Co-operation in the Development o f Shared Water Resources 179

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9.

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12. 13.

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18.

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20.

22. 23.

‘Equitable Utilization’, Chap. 2 the Helsinki Rules, International Law Association, Report of the Committee’on the Uses of the Waters of International Rivers (London, 1967); J. Lipper, ‘Equitable utilization’, in Carretson, Hayton and Olmstead, The l o w of International Drainage Basins (New York, Oceana: Dobbs Ferry, 1967), Chap. 2; Report of the United Nations Water Conference, op. cit. , esp. Recommendation 91. “Agreement between Argentina and Uruguay relating to the utilization of the rapids of the Uruguay River in the area of Salto Grande”, of 30 December 1946, Art. 3(b), in Legislative Texts and Treaty Provisions concerning the Utilization of International Rivers for Other Purposes than Navigation (United Nations publication, Sales No. 63.V.4, treaty No. 40). River Basin Development. Policies and Planning, 2 vols. (New York-Budapest, 1976; Proceedings of the United Nations Interregional Seminar on ‘River basin and interbasin development’, 16-26 September 1975 in Budapest); Economic Commission for Europe, Proceedings of the Seminar on Long-Term Planning of Water Management (Bulgaria, Zlatny Piasatzi, May 1976), Vol. I (New York, 1976; UN publication Sales No. E.76.II.E.27); Multi-purpose River Basin Development - Part I; Manual of River Basin Planning (UN publication Sales No. 1955.II.F.l; Flood Control Ser. No. 7, doc. ST/ECAFE/SER.F/7). ‘River basin planning, observations from international and Canada-United States experience’ (paper prepared for Meeting of International River Organizations, 5-14 May 1981, Dakar, M. Cohen, Meeting doc. MEP.4). Mali-Mauritania-Senegal, OMVS, River Senegal, 1979, for recent developments. Art. 10, “Agreement for the establishment of the organization for the management and development of the Kagera River Basin (Burundi, Rwanda, Tanzania)”, 24 August 1977. OMVG, ‘Note technique sur l’OMVG’, 9 p., n.d.; UNDP, Development of the Gambia River Basin, multi-disciplinary mission, multi-donor mission, March-April 1977, Programme of Ac- tion (draft), n.d., plus annexes. E.g., the Lake Chad Basin Commission, the Indo-Nepalese Co-ordination Committee for the Kosi Project, and the International Joint Commission, all of which lack operational authority. E.g., the Kagera Basin Organization; OMVS; the Mekong Committee; the Argentine-Uruguayan Salto Grande Commission; the Danube Commission; the Argentine-Paraguayan bi-national entity Yaciret, which administers the arrangements made for the exploitation of the hydropower potential of the Apip6 falls mentioned supra, footnote 12; and the Brazilian-Paraguayan bi- national entity Itaiph, which administers the arrangements made for the exploitation of the hydropower potential of the Salto del Guaira falls, on the Parana river. Agreement between France, the Federal Republic of Germany, Luxembourg, the Netherlands, and Switzerland, of 29 April 1963. In 1979 the European Economic Community became a member of the Commission. The Central Commission for Rhine Navigation, separately, has undertaken to strengthen its “preventive role” with respect to pollution resulting from navigation. Also founded, an International Commission for the Hydrology of the Rhine Basin (1970) (without the hydrogeological dimension), and the Gewasserschutzkommission of the long standing Rhine Union of Chambers of Commerce dealing with problems of pollution control of Rhine waters. International Joint Cornmission, Seventh Annual Report - Great Lakes Water Quality, pp.

G. White (ed.), Environmental Effects of Complex River Development (Boulder, Colorado, Westview Press, 1977); L. Teclaff, ‘Harmonizing water resources development and use with environmental protection in municipal and international law’, Nutural Resources Journal 16 (1976), pp. 807ff; Organization for Economic Co-operation and Development, “Council recommendation for strengthening international cooperation on environmental protection in frontier regions”, adopted 21 Sept. 1978 (OECD doc. C(78) 77 (final), 27 Sept. 1978); D. Henning, Environmental Policy and Administration (New York, American Elsevier Publ. Co., 1974). Compare, however, the comprehensive approach taken within the Mano River Union (Liberia and Sierra Leone), OMVS, the Kagera Basin Organization, and OMVG. International Law Assoc., Report of the Fifty-Fifth Conf., New York, 1972 (1974), PP. 49-77. Ibid., pp. 77-79.

61-63 (1980).


24.

25.

26.

27.

28.

29.

30. 31.

3 2.

33.

34.

35.

36.

37.

R. Hayton, ‘The Plata Basin’, in Garretson, Hayton, and Olmstead, The Low of International Drainage Basins, op. cit., esp. pp. 313-315, 325-328,401. United Nations Natural Resources/Water Series No. 1, Management of International Water Re- sources - Institutional and Legal Aspects (New York, 1975; Sales No. E.75.II.A.2), pp. 223- 221;pp. 144-173. The 1955 Yugoslav-Hungarian Agreement, the 1956 Agreement between Albania and Yugosla- via, and the 1958 Bulgarian-Yugoslav Agreement on Water Economy Questions are important early examples (text in United Nations Legislative Texts and Treaty Provisions, op. cit. , treaty No. 228, p. 831 (Art. 1, para. 2 (g)) (Art. 1, para. 2(g) and 3); No. 128, p. 441 (Art. 1, para. 2(h) and 3); and No. 161, p. 5 5 8 (Art. 1, para. 2 (f)) respectively. ProbIPrnes des Aquiferes internutionaux (proceedings, with formal papers, of an international round table held in Strasbourg, France, April, 1980, sponsored by the Institut de M6canique des Fluides, Universitk Louis Pasteur de Strasbourg and the International Water Resources Associa- tion; in press); The Development of Groundwater Resources ... (New York, 1963; U N pub. Sales No. 64.II.F.5), Transactions of the ECAFE-UNESCO Regional Seminar on the ..., with special reference to deltaic areas, 24 April-8 May 1962 in Bangkok. L. Teclaff and E. Teclaff, ‘Transboundary ground water pollution: Survey and trends in treaty law’, Natural Resources Journal 19 (1979), pp. 629-667; D. Caponera and D. Alhtritiire, ‘Principles for international groundwater law’, Ibid., Vol. 18 (1978), pp. 589-619; G. Kovics, ‘The use of ground water resources in river basin development’; in River Basin Development, Policies and Planning. op. cit., Vol. 1, pp. 139 148; R. Hayton, ‘The ground water legal regime as instrument of policy objectives and mangement requirements’, in Annales Juris Aquarum-I1 3 vols. (Caracas, International Association €or Water Law, 1976), Vol. 1, pp. 344-366. A. Utton, ‘International groundwater management: The case of the U.S.-Mexican frontier’, Nebrash Law Review 57 (1978), pp. 633-664; M. Bradley and K. DeCook, ‘Groundwater occurrence and utilization in the Arizona-Sonora border region’, Natural Resources Journal

Lake Chad Basin Commission, Buckground, History und Activities, p. 7 (1980). Report of the International IRW Commission on the Work of its Thirty-Second Session, p. 274 (UN doc. A/35/10, New York, 1980). The Committee for Co-ordination of Investigations of the Lower Mekong Basin, established in 1957, may be considered the pioneer in integrated management of a shared water resources system. E.g., its Annual Report, 1978 (Bangkok; ST/ESCAP/79), numerous studies, and the subsequent Reports of the sessions of the ‘Interim Mekong Committee’. More ambitious as well as comprehensive in concept are the Mano River Union Basin Development Project, the OMVS, the Commission de Fleuve Niger, the Organization for the Management and Development of the Kagera River Basin, and the OMVG. Compare the 1969 Treaty of Brasilia covering the Plata Basin. S. Burchi, ‘International legal aspects of pollution of the sea from rivers’, Tne Italian Yearbook of lnternurional Law, 1977, Vol. 3 (Naples, 1978), pp. 115--142; L. Hargrove (ed.), Who Pfotects the Oceans? (New York, 1975). UN Doc. A/CONF.62/WP.lO/Rev.3, 22 Sept. 1980, Art. 66, 194,197-202,204,206,207,213 and 235. ‘Convention on the protection of the marine environment of the Baltic Sea area of 1974 (Helsinki)’, International Legal Materials 13 (1974), pp. 546ff; ‘Convention for the protection of the Mediterranean Sea against pollution of 1976 (Barcelona)’, ibid., Vol. 15 (1976), pp. 290ff; ‘Convention for the prevention of marine pollution from land based sources of 1974 (Paris)’, ibid., Vol. 13 (1974), pp. 352ff; ‘Kuwait regional convention for co-operation on the protection of the marine environment from pollution’, ibid., Vol. 17 (1978), pp. 511-540 (see also pp.

The 17 May 1980 ‘Protocol for the protection of the Mediterranean Sea against pollution from land based sources’ does, however, expressly contemplate pollution from international watercourses (Art. ll), ibid., Vol. 19 (1980), p. 873. I. Fox and D. LeMarquand, ‘International river basin co-operation’, op. cit., para. 56.

18 (1978), pp. 29-48.

501-51 1).


38. See D. LeMarquand, ‘Politics of international river basin co-operation and management’, in Nut. Res. Journal 16 (1976), p. 882, p. 899 and following.

39. I.Fox and D. LeMarquand, ‘International river basin co-operation’, op. cit., paras. 40, 41. Also D. LeMarquand, ‘Politics of international river basin co-operation and management’, op. c i t . , p. 900.

40. L. Dworsky, ‘Co-operative management and development of international river basins, general report’, in cit., Vol. 2, pp. 5-15; D. LeMarquand, International Rivers, the Politics of Co-operation (Vancouver, B.C., Univ. of British Columbia, 1977).

River B a i n Development, Policies and Planning. op.

Documents

CO-OPERATION IN THE DEVELOPMENT OF SHARED WATER RESOURCES