|Imagine a scenario where states A (upstream), B (midstream) and C (downstream) share a transboundary river with an annual inflow of 100 km3.
State A (population of 30 million) has a significant agricultural base, which supports its people, 50% who live below the poverty level and who depend upon subsistence farming. The average GDP is $50 per capita. The new President has just delivered a national Strategic Economic Reform Plan based on increasing significantly the irrigation across the country. The reform package is based on meeting the ‘vital human needs’ of the poverty-stricken population, many of whom do not have clean water or sanitation. State A contributes about 60 km3 to the flow of the river, and currently only uses 30 km3 for domestic uses, small industries and agriculture. While the return flow is quite considerable, the water is of diminished quality due to the high content of pesticides and nitrates resulting from heavy irrigation. Despite its agricultural base, State A is heavily reliant on food imports; which have proven to be a costly way of achieving food security. Just over 50 percent of the river basin is contained within the borders of state A. Under the reform package its demand for water will increase to 60 km3.
State B (population of 5 million; GDP of $150 per capita) uses the water of the transboundary river primarily for domestic and some highly profitable agricultural uses. The country is home to a significant area of wetlands which is connected to the watercourse and provides important ecological services. It contributes 10 km3 to flow of the river, uses about 10 km3 and is in dire need of another 10 km3 to sustainably support its endangered wetlands.
State C (population of 15 million; GDP of $400 per capita) is heavily industrialised and is planning to increase its hydropower production to serve the surging needs of its industry and rapidly growing population. It contributes 30 km3 to the shared watercourse, but uses 70 km3 and needs a further 20 km3 to fill its planned reservoir. Around 35 percent of the river basin is located in state C. While it has a considerable amount of coal plants supplying state C with energy, it still relies on (costly) electricity imports. One of state C’s main points in any negotiation has always been that due to its early development of the river’s water resources, it holds a historic right which will be put at risk by any development upstream affecting the transboundary watercourse.
It is obvious that the respective development plans of the three countries will lead to a conflict of uses. The three states now have to enter into consultations in a spirit of cooperation (Article 6(2)); and determine whether their (planned) uses are both equitable and reasonable. In doing so, all relevant factors have to be considered together and the watercourse states have to come to reach a conclusion on the basis of the whole (Article 6(3)).
Once the states have completed the exercise of assessing whether or not their existing or planned uses of the transboundary watercourse meet the criteria of equitable and reasonable utilisation, they are in a position where they can determine how to proceed with their respective national water policies and plans – including the transboundary water resources. The range of these options available to the three watercourse states is sufficiently wide; and the choice will depend on the particular outcome of the whole assessment. The following two scenarios only serve as examples, since ‘real life cases’ are most likely more complex and demand for more subtle considerations.
The use(s) meet(s) the criteria of equitable and reasonable utilisation
In this case the state may continue its use of the water resources on a ‘business as usual’ basis. It will not be legally obliged to undertake any actions vis-à-vis the other watercourse states. However, even in this situation it is suggested for the states sharing the watercourse to aim for a certain degree of cooperation – e.g. through the regular exchange of data and information. Existing use may continue provided that the co-riparian states agree (explicitly or implicitly) with the underlying assumption that it constitutes an equitable and reasonable utilisation.
The use(s) does (do) not meet the criteria of equitable and reasonable utilisation
If, like in the example at hand, the existing use of the water by the state in question is both ‘inequitable’ and in conflict with existing uses of co-riparians, the former is under a legal obligation to reduce its utilisation of the international watercourse. However, it has an option to enter into negotiations with the other states in order to come to an acceptable arrangement – e.g. payment of compensation for the use of water in excess of its equitable share. The refusal or unwillingness either to amend (i.e. reduce) the existing use or to enter into negotiations with a genuine view to achieve an equitable result may be interpreted as a breach of its international legal obligations.
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