by Tejas Sateesha Hinder 15 Janaury 2021
Introductory Remarks
Along the Brahmaputra River, which passes through areas of Asia that have been vulnerable to territorial war, China and India are vying for capital. South Asia has insufficient water. A cause of significant conflict between India and China is mass dam-building and diversion proposals. There is little room for a confrontation between the two Asian giants, but a combination of regional rivalry and uncertainty over water-sharing could still endanger regional stability. China, which lies upstream, must not establish a situation in which India feels that its potential water security is greatly compromised by dams and other hydro-projects along the Brahmaputra River.
This stress of water adds to tensions between the two nations. Within the two nations, climate change, depleting aquifers, rapid population growth, and urbanisation are putting pressure on limited water supplies. Tibet has remained an underlying challenge that influences Sino-Indian relationships. Coupled with on-going boundary tensions over Arunachal Pradesh, after China started building upstream dams, friction over water has continued to increase.
In this matter, China, by virtue of customary international law, has an obligation to equitably use the Brahmaputra River, and blocking it not only violates customary international law but also the Memorandums of Understanding (hereinafter “MoUs”) between the two countries signed in 2013 and 2018, respectively. Further, the blocking of the river violates the rights of the people of India as guaranteed under the Geneva Conventions and the Additional Protocols, as they were dependent on it for multiple purposes. This article explores the Customary Obligations existing in China and the manner in which the same would be violated in case of progress in the hydro-project. While doing so, the article also brings out potential violations of the International Statutes and Regulatory Framework, governing water sharing and Human Rights.
Existence of a Customary Obligation to use the Water equitably
International Customary Obligations
Shared water resources are governed by the principle of equitable use in customary international law.[1] States share a “community of interest” in these resources.[2] Article 2 of the Helsinki Rules defines an international drainage basin as “an international drainage basin is a geographical area extending over two or more States determined by the watershed limits of the System of waters, including surface and underground waters, flowing into a common terminus.” It can be inferred from the definition that the Brahmaputra River constitutes an international drainage basin. According to Article IV of The Helsinki Rules Basin States[3] are entitled to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin. In light of this Article, that India is entitled to its reasonable and equitable share in the Brahmaputra River by virtue of being a basin state in reference to the Brahmaputra River. Economic and social needs of each Basin State, the population dependent on the waters of the basin in each basin State, the comparative costs of alternative means of satisfying the economic and social needs of each basin State and the degree to which the needs of a basin State may be satisfied and without causing substantial injury to a co-basin State[4], are relevant factors in determining the reasonable and equitable share of the international drainage basin. In the present case, if these factors are looked upon, it can be inferred that the blocking of the Brahmaputra River is not justified as it is a source to meet the social needs of the people of India and the population of India is dependent on it to meet its needs. Further, the blockade would lead to substantial injury of the people of India who were dependent on it to meet their needs, and hence, injure a co-basin state. Therefore, the blockade would violate Article V of The Helsinki Rules.
Prevailing State Practice
In the United States, in the earliest of the river water cases (Kansas v. Colorado), the Supreme Court held that the dispute over sharing of water resources must be settled on the basis of equality of rights.[5] In other cases, the Supreme Court has applied in interstate water disputes the doctrine of equitable apportionment.[6] In India, in a dispute between Sind and Punjab, concerning the use of the waters of the Indus system, the Report of the Indus Commission of 1941 (Rao Commission Report) upheld the rule relating to equitable apportionment.[7] In the River Krishna dispute, the tribunal, constituted by the Central Government to settle the dispute between the states of Maharashtra, Karnataka, and Andhra Pradesh, decided that groundwater is a relevant factor to be taken into consideration for equitable distribution of water.[8] In the Narmada dispute, again, between the states of Madhya Pradesh, Maharashtra and Gujarat, the tribunal decided on the basis of the principle of equitable apportionment.[9]
In the judgment of the German Staatsgerichtsh in the Donauversinkung Case[10], the principle of equitable apportionment of water was applied. In a dispute between the cantons of Zurich and Aargau, the Federal Court (Bundesgericht) of Switzerland affirmed the equal rights of the cantons to use the public watercourses.[11] The Italian Court of Cassation in Société Energie Electrique v. Compagnia Imprese Elettriche Liguri affirmed the principle of a community of ownership of water resources.[12] In the case of Württemberg v. Baden[13], the Supreme Court of Germany grounded its decision on the principle of equitable utilization. In other cases, the Supreme Court has applied in interstate water disputes the doctrine of equitable apportionment.[14] In India, in a dispute between Sind and the Punjab, concerning the use of the waters of the Indus system, the Report of the Indus Commission of 1941 (Rao Commission Report) upheld the rule relating to equitable apportionment.[15] In the River Krishna dispute, the tribunal, constituted by the Central Government of India to settle the dispute between the states of Maharashtra, Karnataka, and Andhra Pradesh, decided that groundwater is a relevant factor to be taken into consideration for equitable distribution of water.[16] In the Narmada dispute, again, between the states of Madhya Pradesh, Maharashtra and Gujarat, the tribunal decided on the basis of the principle of equitable apportionment.[17]
Inapplicability of the Principle of Permanent Sovereignty over Natural Resources
The right to permanent sovereignty over natural wealth and resources is a rule of customary international law that requires its exercise through the mutual respect of states based on their sovereign equality. Since flowing water respects no national borders, transboundary freshwater systems, which largely concern aquifers, fall into the realm of international water law and not within the purview of a single state’s sovereign rights.
In the present case, since the MoUs signed allowed an equitable share of the water of west-flowing rivers, there was an absence of mutual consent to give permanent sovereignty over the Brahmaputra River to China and hence, the same cannot be exercised.
It has been mentioned in Article 3 of the MoUs, India shall receive unrestricted use all those waters of the Western Rivers which India is under obligation to let flow and that China shall be under an obligation to let flow all the waters of the Western Rivers, and shall not permit any interference with these waters. The act of blockade would not be consistent to the exceptions provided to the aforementioned provision, which have been put forward in Paragraph 5 of Annexure C of the MoUs.
Wrongful subjection of civilians to deprivation of resources
In the present case, by blocking the supply of the water of the Bramhaputra River, the civilians, who were not a party to the conflict, and were dependent on the water of the Brahmaputra River, were treated as targets in the conflict.
Article 52(1)[18] prohibits the attack on civilian objects and specifically stipulates that civilians should not be an object of attack. The United Nations Security Council has repeatedly condemned the failure to ensure that civilians are not made subject to attack, either deliberately or through negligence, in conflicts such as Rwanda[19], Burundi[20], and Sierra Leone[21]. China violated Article 6 of the covenant as it confers the right to life.[22] These are the very basic Human Rights conferred on every individual by law. Also, China has violated Rule 1[23] of the customary international humanitarian law which prohibits any attack on the civilians by the parties to the conflict.
Conclusion
In the present instance, China, by virtue of customary international law, has an obligation to equitably use the Brahmaputra River, and blocking it not only violates customary international law but also the MoUs. Further, the blocking of the river violates the rights of the people of India as guaranteed under the Geneva Conventions and the Additional Protocols, as they were dependent on it for multiple purposes.
The blockade amounted to an attack, the civilians were made a subject in the attack, and there would be an infringement of the right to life of the people by the blocking of the supply of water of the Brahmaputra River to India.
[1] Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010 I.C.J. 14 (Apr. 20), ¶266; Gabčikovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 7, ¶85.
[2] Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, at 27.
[3] Article I, Helsinki Rules, The Fifty-second ILA Conference held in Helsinki (1966).
[4] Id., Articles V(2)(e), V(2)(f), V(2)(g) and V(2)(k).
[5] 185 US 125. (1902) (on demurrer), 206 US 46 (1907) (merits).
[6] Nebraska v. Wyoming, 325 US 589 (1945), New Jersey v. New York, 283 US 336 (1931), Connecticut v. Massachusetts. 282 US 660 (1931).
[7] Report of the Indus (Rau) Commission 10-11 (1942).
[8] S. Jain, A. Jacob and S. Jain, Inter-State River Disputes, International Journal of Humanities and Social Science Invention, ISSN (Online): 2319 – 7722.
[9] Id.
[10] Annual Digest, 1927-28, Case No. 86
[11] Recueil officiel des arrêts du Tribunal fédéral, IV, pp.34-37.
[12] Annual Digest, 1938-40, p.120.
[13] Annual Digest, 1927, No. 86, p.128.
[14] Nebraska v. Wyoming, 325 US 589 (1945), New Jersey v. New York, 283 US 336 (193l), Connecticut v. Massachusetts. 282 US 660 (1931).
[15] Report of the Indus (Rau) Commission 10-11 (1942).
[16] S. Jain, A. Jacob and S. Jain, Inter-State River Disputes, International Journal of Humanities and Social Science Invention, ISSN (Online): 2319 – 7722.
[17] Ibid.
[18] Additional Protocol, art. 51 (2) (1977) reads, “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”
[19] UN SC Res. 912, UN Doc. S/RES/912 (1994).
[20] UN SC Res. 1049, UN Doc. S/RES/1049 (1996).
[21] UN SC Res. 1181, UN Doc. S/RES/1182 (1998).
[22] International Covenant on Civil and Political Rights, art. 6 (1), (1966).
[23] Jean-Marie Henckaerts, Beck Doswald Louise, Customary International Humanitarian Law: Rules, 1, Rule 1, Cambridge University Press, Cambridge (2006).