Equitable Allocation and No Significant Harm
Of late, I have been reading about international water laws. The topic was started with Farakka and then continued with current debate on another dam in the North-East India at Tipaimukh. One particular article of Convention on the Law of the Non-navigational Uses of International Watercourses gets overwhelming mention in almost all the literature – an upper riparian state should not cause “significant harm” to the lower one with its water planning (article 7) – i.e. “Obligation not to cause significant harm”. However, the very basic principle of the convention was centered on the equitable and reasonable use of the resources in the trans-boundary watercourses. So, what happens if even equitable use causes significant harm to the lower riparian?
The same question was nicely rephrased in Steven McCaffrey’s article on the convention.
“Suppose, for example, that – as is often the case-upstream State A has not significantly developed its water resources because of its mountainous terrain. The topography of the downstream states on the watercourse, B and C, is flatter, and they have used the watercourse extensively for irrigation for centuries, if not millennia. State A now wishes to develop its water resources for hydroelectric and agricultural purposes. States B and C cry foul, on the ground that this would significantly harm their established uses. How should the positions of State A, on the one hand, and States B and C, on the other-neither of which seems unreasonable on its face-be reconciled”
I was astonished to see a lot of articles mentions the equitable use and the obligation not to cause significant harm without even understanding the complexity of it. Equitable use is a much broader term that takes account of the riparian population, geography/hydrology, social/economic factors, effects of that particular use, costs and economy of usage and last but not the least – the availability of alternative resources. The definition was even extended in Berlin Rules to add existing and potential uses, sustainability of the proposed use and minimization of environmental harm. One additional factor that got a special note is the “Vital human needs”. McCaffrey quotes from ILC text –
“In determining ‘vital human need’, special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation.”
At this point one can read an interesting article on trans-boundary water allocation treaties and the approach that should be used to get to them. It discusses different kind of negotiations – from need based approach to baskets of benefits.
Let’s again dive into the controversial question. Between the articles – “Obligation not to cause significant harm” and “Equitable and reasonable utilization and participation” – which one gets priority? McCaffrey has discussed in details and answered it in his books those I can only partially access through google books (The Law of International Watercourses By Stephen C. McCaffrey). However, another article by Kerstin Mechlem discusses the issue in details. It notes –
“A complete prohibition of causing any harm would result in almost a veto power for new uses since any new use of a river, lake or groundwater resource is likely to cause some negative effect somewhere in the system. Were this to be prohibited states that develop their water resources later than others would be disadvantaged and new developments would be blocked leading to an inherently inequitable situation.”
This is the question that bothered me the most. Is it going to be a veto power to the existing water user? Would India and Bangladesh deny Nepal its equitable share of water only because Nepal is late in the party? The article refers to the ICJ decision on Gabcikovo-Nagymaros case where Hungary, the lower riparian heavily relied on the “No Significant Harm” principle. However ICJ stressed on equitable uses of the watercourse. The water encyclopedia mentions about the same –
“The Court’s failure even to mention the “no-harm” rule despite Hungary’s heavy reliance on the principle in its pleadings confirms that the rule of equitable utilization is primary, and that avoidance of harm is to be considered only in analyzing whether a particular use or pattern of use is equitable.”
The article concludes –
“The no-harm principle is therefore limited by and only operates in conjunction with the principle of equitable utilization. It is the balancing of interests under the equitable utilization rule that has to solve the problem whether in a specific case a certain type of harm may be caused or not. The duty to consult with the affected state to eliminate or mitigate such harm, and to discuss compensation where appropriate (Art. 7 para. 2), alleviates the burden of this compromise for the state subject to harm.”
One important thing should be noted in the article 7 text. The text talks about “taking all appropriate measures” and does not specify what to do if harm can not be mitigated despite all those measures. It is therefore can be inferred that the obligation is not for preventing significant harm, but to take measures with diligence.
The proposition that the “no-harm” rule does not enjoy inherent preeminence is supported by Article 10 of the Convention, which provides that any conflict between uses of an international watercourse is to be resolved “with reference to articles 5 to 7”. McCaffrey also added one example –
“This would presumably mean that if State A’s hydroelectric use conflicts with State B’s agricultural use, the conflict is not to be resolved solely by applying the “no-harm” rule of Article 7, but rather through reference to the “package” of articles setting forth the principles of both equitable utilization and “no-harm”.”
In water encyclopedia, it is written that –
“The final version of Article 7 makes clear that the “no-harm rule” is subordinate to the rule of equitable utilization. Article 7 requires watercourse nations, in utilizing an international watercourse, to take all “appropriate measures” to prevent the causing of significant harm to other watercourse nations. If significant harm nevertheless is caused to another watercourse nation, the nation whose use causes such harm must, in the absence of agreement for the use, take all appropriate measures, having due regard for the provisions of Articles 5 and 6 (equitable utilization) in consultation with the affected nation, to eliminate or mitigate the harm and, where appropriate, to discuss the question of compensation.”
To write down the conclusion, I understand that the “obligation not to cause any significant harm” is nothing but another criterion while considering equitable allocation of water resources and can be fulfilled if the riparian states agree upon appropriate measures. As per McCaffrey, the equitable allocation can be reached in case of trans-boundary disputes only through the gestures of “good neighborliness”. He rephrased his conclusion about “Equitable Allocation” and “No Significant Harm” in a nice way (pg 353 in The Law of International Watercourses) –
“Being a good neighbor means not only refraining from causing significant physical harm to other states in the vicinity, but also tolerating a certain level of harm emanating from activities in those states.”
As per the spirit of his statement, the inter-state disputes should be approached from the equitable allocation point of view and existing users should be ready to share the burden of the newcomer, if the need of the newcomer is genuine.