70% of the Earth’s surface is filled with water, and we humans can only access 0.5% of it. The rest is too saline or is locked away in ice caps, glaciers and permafrost, often leading to a scarcity. We use this 0.5% of water for all our essential social (drinking, bathing, washing, etc.) and economic needs (energy, textiles, agriculture, etc.). Now when you add rising population, droughts, and water intense economic development to the water availability equation, you end up with water scarcity. 50% of the global population face at least one month of water scarcity every year.
Water scarcity happens due to two main reasons according to the UN – Natural (droughts, etc.) and Economic (poor water management). While natural water scarcity is out of our control, economic water scarcity is definitely under the control of each city, state, and nation. However, what happens when water bodies like lakes and rivers cut across political boundaries? We currently have over 263 transboundary water sources. So, how do two nations work together to ensure that they manage the transboundary water economically, without impacting the other with water scarcity?
Legal frameworks serve this exact purpose of international water-sharing arrangements. They provide a peaceful mechanism for transboundary water sharing and solve any water disputes. Between 1820 and 2007, over 450 international agreements on the water have been signed. Given that droughts will only get worse (climate change), and our world’s population will increase to nearly 10 billion by 2050, now more than ever, we need our international water agreements to be fair and equitable. So, in this article, let’s look at three dominant theories on international laws on water and which one we should look to adopt moving forward.
The Three Theories contributing to the International Laws on Water Sharing
1. Absolute territorial sovereignty
Sovereignty in international law refers to the power of a nation to do what it pleases within its territory. It basically means I do what I want within my borders. Absolute territorial sovereignty in terms of international water law refers to this power of a sovereign, to use transboundary water resources as they please, without regard to other nations. Same simplification, just with water. So, it means I do what I want with my water within my borders. This theory was used by the US against Mexico in 1895.
In 1895, Mexico and the US were engaged in a dispute over the transboundary Rio Grande River, where excessive diversion by the upstream farmers in Texas was leaving Mexico with very little water. The US Attorney General Judson Harmon noted:
“The fact that the Rio Grande lacks sufficient water to permit its use by the inhabitants of both countries does not entitle Mexico to impose restrictions on the USA.”
The US essentially told Mexico that they cannot stop them from using as much water as they want from the Rio Grande river.
2. Absolute territorial integrity
Next is the absolute territorial (or riverain) integrity. This position uses the legal concept of sovereignty to argue that no other nation can interfere with the absolute enjoyment of natural resources in a sovereign country. As per this argument, no nation is entitled to interfere with the volume or quality of water flowing into the territory of another.
If we use the same US and Mexico example, Mexico basically would have had the right to tell the US that they simply cannot interfere with the Rio Grande River because it flows from the US into theirs. Here the US farmers were interfering with the volume of water that was flowing into Mexico. The excessive diversion by the upstream farmers in Texas was leaving Mexico with very little water.
There is also an example of the case between Canada and the US known as the Trail Smelter case, which affected the Columbia River. Long story short, the US attempted to restrict the smelter in the Canadian city of Trail, which led to air and water pollution on the transboundary Columbia River.
3. Limited territorial sovereignty
This theory supports legal arrangements where both parties agree to reciprocate by adhering to certain accepted principles for international watercourses. This, in effect, limits a part of their territorial sovereignty over natural resources by mutual consent. In laymen’s terms, both countries come to a mutual agreement on how they want to share the water between themselves. It was first used in the cooperation over river Meuse between Belgium and the Netherlands.
“The Meuse being a river common both to Holland and to Belgium, it goes without saying that both parties are entitled to make the natural use of the stream, but at the same time, following general principles of law, each is bound to abstain from any action which might cause damage to the other.” All of which essentially translates to that they both use water without damaging the other’s ability to use it.
This theory supports principles such as equitable and reasonable use of water, obligation to cause no harm, information sharing mechanisms, peaceful settlement of disputes, etc. Most International water-sharing arrangements including the UN Watercourses Convention are based on this general principle and have become a part of the customary international law for water sharing.
Water Sharing is Caring
It’s clear that limited territorial sovereignty is better than absolute territorial integrity and sovereignty when it comes to a fair and equitable share of water resources. So, why ever go for absolute territorial integrity and absolute territorial sovereignty? Researchers believe that countries take these absolute positions simply as a tool for strategic negotiation before eventual mutual agreement and settlement. So, it’s all just a song and dance in the end. Take both the Rio Grande and the Trail Smelter disputes. Eventually, both were resolved by the US through mutual agreement with Mexico and Canada.
However, moving forward, no country should take such an absolute stance. Globally, we should always strive for limited territorial sovereignty, where countries work together and share the water resources equitably and responsibly. After all, climate change and droughts are global problems. And global problems require peaceful global solutions.
- Clean Water – Our Liquid Asset
- Water Scarcity – A Brief Analysis
- Drip Irrigation: Can Little Drops Of Water Be Our Friends?
- International Law and Interstate River Disputes
- UN Report of Trail Smelter Case Arbitral Award
- Transboundary River Basins – Status and Trends
- UN International Decade for Action “WATER FOR LIFE” 2005-2015
- UN Transboundary Waters
- FAO Transboundary Waters
- Reassessing the projections of the World Water Development Report