Water allocation mechanisms in international water law

565 DINAR et al. (2014) op. cit. p. 2.

566 Ibid p. 19-20.

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Historically, water allocation has been a dominant feature of international water treaties. Water sharing schemes have been the primary focus of almost 40% of all transboundary water agreements concluded during the 20^th century, only to be surpassed slightly by hydroelectricity⁵⁶⁷. Allocation schemes feature equally high in contemporary water treaties. On the basis of the detailed comparative analysis of international basin specific agreements concluded between 1980 and 2002 Dreischova et al. found that 60% of such agreements included one of the three allocation mechanism referred to above, while 26% included one or more direct allocation mechanisms. Indirect allocation is used in about half of the treaties, often complimenting a direct mechanism. Principles of allocation are rarely employed independently⁵⁶⁸.

Yet, the most authentic codification of contemporary international water law, the UN Watercourses Convention, does not define water allocation mechanisms, it merely lays down the principle of equitable and reasonable utilisation that is meant to provide key guidance for all allocation questions⁵⁶⁹. Importantly, however, no hard and fast rules can be derived from the equitable and reasonable utilisation imperative, nor is it supported by robust international judicial practice⁵⁷⁰. In fact, the weak guidance given by the principle does not even amount to a common frame for reference⁵⁷¹. Therefore, its success largely depends on the effectiveness of their administration and enforcement⁵⁷². As a result, the equity concept has very little practical impact on actual water sharing mechanisms⁵⁷³.

At regional and basin level, however, a significant number of agreements actually do address allocation in a more elaborate fashion. E.g. the SADC Revised Protocol on Shared Watercourses specifically covers certain critical uses riparian states may rightfully pursue (agricultural, domestic, environmental and industrial use) and the relevant flow regulation measures⁵⁷⁴. Importantly, the southern African region has a large number of international rivers that are subject to specific basin agreements and commissions that lay down precise allocation rules or

567 RIEU-CLARK et al. (2012) op.cit. p. 93.

568 DRIESCHOVA et al (2008) op.cit. p. 289.

569 RIEU-CLARK et al. (2012) op.cit. p. 100. Also see section I.3.2.3. above.

570 BARANYAI and BARTUS (2016) op. cit. p. 45.

571 WOLF (1999) op. cit. p. 10.

572 RAI, Subash P., SHARMA, Nayan and LOHANI A.K. (2016): Transboundary Water Sharing: Issues Involved, Environmental Policy and Law 46/1 pp. 62-68, p. 65.

573 GIORDANO (2002) op. cit. p. 24-25.

574 Article 3.2 and 1.1, SADC Revised Protocol. Also see section I.3.2.4. above.

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define mechanisms for water allocation on the basis of the Revised Protocol (e.g. the 2002 Incomaputo Agreement concerning the Incomati and Maputo rivers⁵⁷⁵).

Several multilateral basin treaties also contain some kind of allocation mechanisms. For example the 1995 Agreement on the Sustainable Development of the Mekong River Basin sets minimum and maximum flow requirements for the mainstream for the dry season, the wet season as well as defines acceptable minimum monthly natural flows⁵⁷⁶. It also lays down mechanisms and institutions for the determination of actual flow quantities in the lower Mekong basin⁵⁷⁷. Similarly, the 2002 Charter of Waters of the Senegal River lays down a list of principles and priorities as to how to apportion water among different uses and sectors in the entire basin. Actual transboundary allocations are to be determined by the Permanent Water Commission according to the principles and the modalities set out in the Annexes to the Charter⁵⁷⁸. Another well-known water sharing mechanism has been instituted among the central-Asian republics of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan⁵⁷⁹. In this case, the water resources of the Aral Sea basin are allocated among the riparian states by the Interstate Commission on an annual basis in accordance with a series of agreements.

Even more prominent is the presence of allocation principles, rules and mechanisms in general or issue-specific bilateral water treaties. Examples include the 1909 Boundary Waters Treaty between the US and Canada⁵⁸⁰, the 1944 treaty between the US and Mexico on the Colorado, Tijuana and Rio Grande rivers⁵⁸¹, the 1996 Indian-Bangladeshi Ganges treaty⁵⁸², the 1960 Indus

575 Article 7 and Annex I, Tripartite Interim Agreement between the Republic of Mozambique and the Republic of South Africa and the Kingdom of Swaziland for Co-Operation on the Protection and Sustainable Utilisation of the Water Resources of the Incomati and Maputo Watercourses, Johannesburg, 29 August 2002.

576 Articles 5 and 6, Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Chieng Rai, 5 April 1995.

577 Article 26, ibid.

578 Article 19, Charte des eaux du fleuve Sénégal, 28 May 2002.

579 Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan and the Republic of Uzbekistan on Cooperation in the Field of Joint Management on Utilization and Protection of Water Resources from Interstate Sources, Statute of the Interstate Commission for Water Coordination of Central Asia, Alma-Ata, 18 February 1992.

580 Treaty between the United States and Great Britain relating to Boundary Waters, and Questions Arising between the United States and Canada, Washington, 11 January 1909.

581 Treaty between the United States of America and Mexico relating to the utilization of the Waters of the Colorado and Tijuana Rivers and of the Rio Grande, Washington, 2 March 1944.

582 Treaty between the Government of the Republic of India and the Government of the People’s Republic of Bangladesh on sharing of the Ganga/Ganges water at Fakarra, New Delhi, 12 December 1996.

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Waters Treaty between Pakistan and India⁵⁸³, etc. These agreements contain a large variety of allocation mechanisms referred to above⁵⁸⁴.