The United Nations General Assembly came up with a ‘Watercourse Convention’ in the year 1997. However, this is not yet implemented, since a majority of the countries have not approved it.
The two primary principles stated in the Convention regarding distribution of water between two sovereign countries are, “equitable and reasonable” distribution of water, and “not causing significant harm” to the second party. These principles can also be applied to two different states sharing water resources amongst themselves.
These principles can help resolve the water disputes between two states, for example the water dispute between Karnataka and Tamil Nadu on sharing the Cauvery River. As per the first principle “equitable and reasonable” slated in the Convention, we must share the water resources, safeguarding the interest of both the states.
However, the term, “equitable and reasonable” is very vague and we cannot exactly define what is “equitable and reasonable”. Let’s consider a scenario where the farmers of Karnataka are provided water for mulberry crops while the paddy crops in Tamil Nadu wilt with no or less water. It is therefore very difficult to determine how much is equitable. The primary use of Cauvery River was for irrigation, however with the growth of Bengaluru city, the circumstances have now changed. In a scenario where the residents of Bengaluru get access to 10 litres of water on a daily basis, and the farmers in Tamil Nadu provide 5 irrigations to their paddy crops, it is not easy to determine if the distribution of water is “equitable and reasonable”. According to the National Water Policy, the Karnataka Government may argue that drinking water is of higher priority than irrigation. The Tamil Nadu Government on the other hand may argue that the livelihood of its farmers is effected and it has the customary right on the Cauvery River from the last decades.
It is therefore not possible to solve these arguments on legal or scientific manner. One can infer the principle “equitable and reasonable” to suit one’s personal beefit and hence the principle is toothless.
The word significant in the second principle stated in the Un Convention, cannot be defined either. Consider a scenario, wherein the farmers of Tamil Nadu receive 2 irrigations instead of 5 due to shortage of water from Karnataka. Will be pose a significant harm? This cannot be decided on scientific basis. Hence the principles stated in the UN Convention are baseless and not useful.
When distribution of water between states can be so complicated and difficult, distribution of water between two sovereign states is definitely huge and depending on the power of each state.
The European Society of International Law release a paper which says, “The core principles of international water law are commonly viewed as having customary status.” According to this principle, Karnataka must not switch of the taps if Tamil Nadu has customarily been using the waters of the Cauvery. These principles again are baseless.
The need of the hour is to devise transparent principles for water distribution. The first principle could be to provide sufficient drinking water to the people, ensuring minimum water flows for the survival of the river. The Union Government can allocate one-half of this based on the customary rights. The customary rights should be defined considering the usage in the last 10 years. The Centre can then choose to auction the remaining one-half (25%) between the two parties. In this way, both the states stand equal chances to buy and acquire this water. The Central Government should devise many such transparent policies for distributing water and avoid unnecessary disputes.