5.

International Water Governance:

an introduction
By Joyeeta Gupta

5.1

Introduction and Learning Objectives

This unit provides an overview of the key water issues that will be further developed in this
course. After an explanation of key conflicts worldwide, it defines some key terms, explains
how boundaries are demarcated on international rivers and the fundamental principles with
respect to navigation. It then makes the argument that we are witnessing three parallel
processes in the development of water institutions.
After reading this unit, you should be able to:
Define and understand terms such as water governance, international river, international
watercourse, median line, boundary demarcation, Thalweg line, riparianism etc.
Have an understanding of existing water conflicts world-wide ( 5.2) and how these may
be further exacerbated by climate change;
Understand, analyse and assess the different types of possible water conflicts and
governance options to deal with such conflicts;
Understand, analyse and assess the evolution of water governance over the centuries, and
the different actors involved; and
Be able to integrate the different information and form judgements about how water
governance can be improved ( 5.5).

5.2
How many
countries share
their
rivers?

Water Conflicts

There are 263 international river basins identified in the world, in which 40% of the worlds
population lives (TFDD). About 60 countries have 75% or more of their total area falling
within international river basins (see Table 5-1, estimation based on CIA World Factbook
2010 and Transboundary Freshwater Dispute Database (TFDD), 2002).
Table 5-1 Countries which are for more than 75% located in international river basins (approx.
percentage of total area in international river basin).
Equatorial Guinea

75%

Chad

86%

Tajikistan

99%

Lithuania

75%

Poland

90%

Slovakia

100%

Syria

76%

Ethiopia

90%

Byelarus

100%

Myanmar (Burma)

78%

Cambodia

92%

Central African Republic

100%

Venezuela

78%

Niger

93%

Zimbabwe

100%

The course material has been developed by Professor Joyeeta Gupta.

Page 1

Ghana

79%

Guyana

93%

Botswana

100%

Pakistan

80%

Malawi

94%

Burkina Faso

100%

Bulgaria

80%

Slovenia

94%

Hungary

100%

Bangladesh

80%

Andorra

94%

Austria

100%

Belgium

80%

Bolivia

94%

Switzerland

100%

Uruguay

81%

Laos

94%

Zambia

100%

Sudan

82%

Rwanda

96%

Nepal

100%

Guinea

83%

Romania

96%

Uganda

100%

Gabon

83%

Macedonia

98%

Bhutan

100%

Afghanistan

85%

Burundi

98%

Serbia and Montenegro

100%

Bosnia and Herzegovina

85%

Moldova

98%

Peru

100%

Togo

85%

Benin

98%

Congo (Brazzav.)

100%

Uzbekistan

86%

Swaziland

98%

Armenia

100%

Latvia

86%

Luxembourg

99%

Liechtenstein

100%

Nigeria

86%

Czech Republic

99%
1

Source: Estimation based on CIA World Factbook 2010 (total areas) and TFDD 20022 (int. river basin
areas)

What conflicts
exist?

The nature of the dependence is such that it often leads to conflicts between nations.
Conflicts between nations range from long-range environmental impacts of multi-purpose
dams, water scarcity to water flooding. In some cases, water conflicts are also the result of
more fundamental identity conflicts, for instance in the Israel-Arab conflict. A list of
international conflicts is presented in the following table.

1
2

[Link]
See also [Link], International River Basin Registry

The course material has been developed by Professor Joyeeta Gupta.

Page 2

Table 5-2. Major International Water Disputes 1993-2011

Period
1947 - present

Water body
Indus River

Countries in dispute
India, Pakistan

1953 - present

Jordan river

Israel, Palestine, Jordan

1959 - present

Nile river

1960 - present

Ganges river

Ethiopia, Sudan, Egypt,

Uganda, Democratic
Republic of the Congo,
Kenya, Tanzania,
Rwanda, Burundi
Bangladesh, India

1960s-present

Euphrates and
Tigris rivers

Iraq, Syria, Turkey, Iran

1980 - present

Okavango river

Namibia, Botswana

1991 - present

Aral Sea

1992 - 1997

Danube river

Kazakhstan, Kyrgyzstan,
Tajikistan, Turkmenistan
and Uzbekistan
Hungary, Slovakia,

1992 - 2003

Goascorn river

1995
1999

Cenepa river
Danube

1999 - 2000
2002-present

Zambezi / Chobe
river
Kura/ Araks rivers

2002 - 2005
2005 - 2010

Niger river
Uruguay river

El Salvador, Honduras,
(Nicaragua)
Ecuador, Peru
Yugoslavia, various
European countries
Namibia, Botswana,
Zambia
Azerbaijan, Armenia,
Georgia, Turkey, and
Iran
Benin, Niger
Argentina, Uruguay

Issues
Sharing water resources, Indian
management of dams on tributaries
of the Indus
Conflict of distribution of water
from Jordan river and water supply
and treatment conflicts
Control over irrigation water in
downstream reservoirs of Sudan
and Egypt versus need for
development in upstream countries
such as Ethiopia
Farakka Barrage (diversion of
Ganges water by India)
Construction and operation of
several dams along Euphrates and
Tigris by Turkey (GAP project)and
Syria (Tabqa Dam on Euphrates)
reduces flows downstream resulting
in desertification of Iraq/Iran
wetlands
Sharing water resources

Source
TFFD (2008)

Sharing water resources and

environmental degradation

WWAP,
TFDD (2008)

Gabcikovo/Nagymaros dam project

in Slovakia (diversion of water)
Boundary dispute

WWAP 2003,
IWLP
ICJ 2003

Control over headwaters of river

Clear-up of war debris in Danube
(navigation and fear of winter ice
dams leading to floods)
Border and sharing water resources

Gleick 2003
Gleick 2003

Heavy pollution

TFFD (2008)

Boundary dispute
Dispute over the construction of a
pulp mill on the Uruguayan stretch
of the river

ICJ 2005
ICJ 2010

The course material has been developed by Professor Joyeeta Gupta.

Gleick 2003,
TFFD (2008)
Nicol and
Shahin 2003

TFDD (2008)
Gleick 2003,
TFFD (2008)

WWAP 2004,
Nicol 2003

Gleick 2003

Page 3

In the Transboundary Freshwater Dispute Database ([Link]) a

database of cases, treaties and river basins can be found.
In the online system participants will find videos on a number of (potential) water conflicts
(the Aswan dam in Egypt, the Atatrk dam in Turkey and the Okavango River in southern
Africa).
Point to Ponder: Is your country involved in any serious water dispute? What
are the critical issues involved?

Case 5-1: Conflicts in the Jordan basin

Adapted

from

the

Transboundary

Freshwater

Dispute

Database,

see

for

full

case

[Link]
The Jordan River flows between five particularly contentious riparians, two of which rely on the river as the
primary water supply. By the early-1950's, there was little room for any unilateral development without
impacting on other riparian states.
In 1951, several states announced unilateral plans for the Jordan watershed. Arab states began to discuss
organized exploitation of two northern sources of the Jordan. The Israelis made public their "All Israel Plan"
which included the draining of Huleh Lake and swamps, diversion of the northern Jordan River and
construction of a carrier to the coastal plain and Negev Desert.
Jordan announced a plan to irrigate the East Ghor of the Jordan Valley by tapping the Yarmuk. At Jordan's
announcement, Israel closed the gates of an existing dam south of the Sea of Galilee and began draining the
Huleh swamps, which infringed on the demilitarised zone with Syria. This action led to a series of border
skirmishes between Israel and Syria.
In 1953, Israel began construction on the intake of its National Water Carrier, north of the Sea of Galilee and in
the demilitarised zone. Syrian artillery opened fire upon the construction site. The Israelis then moved the
intake to its current site at Eshed Kinrot on the north-western shore of the Sea of Galilee.
Against this tense background, the US sent special envoy Johnston to the Middle-East to try to mediate a
comprehensive settlement of the Jordan River system allocations, and design a plan for its regional
development. The initial issue was an equitable allocation of the annual flow of the Jordan watershed between
its riparian states -- Israel, Jordan, Lebanon, and Syria. Since water was (and is) deeply related to other
contentious issues of land, refugees, and political sovereignty, the negotiations took on vital importance to
relations between these new neighbours.
Johnston's initial proposals (the Main Plan) major features included small dams, a medium size (175 Mm3
storage) dam at Maqarin, additional storage at the Sea of Galilee, and gravity flow canals down both sides of the
Jordan Valley. Preliminary allocations were proposed (please see Table 5-3). Israel responded to the "Main
Plan" with the "Cotton Plan," with different allocations. Also, in contrast to the Main Plan, the Cotton Plan:

called for out-of-basin transfers to the coastal plain and the Negev;

included the Litani River.

recommended the Sea of Galilee as the main storage facility, thereby diluting its salinity.

The course material has been developed by Professor Joyeeta Gupta.

Page 4

In 1954, representatives from Lebanon, Syria, Jordan, and Egypt established the Arab League Technical
Committee under Egyptian leadership and formulated the "Arab Plan." Its principal difference from the
Johnston Plan was in the water allocated to each state. Israel was to receive 182 Mm 3/yr., Jordan 698 Mm3/yr.,
Syria 132 Mm3/yr., and Lebanon 35 Mm3/yr. The Arab Plan:

reaffirmed in-basin use;

excluded the Litani;

rejected storage in the Galilee, which lies wholly in Israel.

Johnston worked until the end of 1955 to reconcile these proposals in a Unified Plan amenable to all of the
states involved. His dealings were bolstered by a U.S. offer to fund two-thirds of the development costs. His
plan addressed the objections of both sides, and accomplished no small degree of compromise, although his
neglect of groundwater issues would later prove an important oversight. Though they had not met face to face
for these negotiations, all states agreed on the need for a regional approach. Israel gave up on integration of
the Litani and the Arabs agreed to allow out-of-basin transfer. The Arabs objected, but finally agreed to storage
at both the (unbuilt) Maqarin Dam and the Sea of Galilee, so long as neither side would have physical control
over the share available to the other. Israel objected, but finally agreed, to international supervision of
withdrawals and construction. Allocations under the Unified Plan, later known as the Johnston Plan, included
400 Mm3/yr. to Israel, 720 Mm3/yr. to Jordan, 132 Mm3/yr. to Syria and 35 Mm3/yr. to Lebanon.

Allocated water (Mm3)

Plan

Israel

Main
*

Cotton (Isr.)
Arab
Unified

Jordan

Lebanon

Syria

393

774

--

45

1290

575

450

30

182

698

35

132

**

***

35

132

400

720

*) Cotton Plan included integration of the Litani River into the Jordan Basin.
**) Unified Plan allocated Israel the "residue" flow, what remained after the Arab States withdrew
their allocations, estimated at an average of 409 MM3/yr.
***) Two different summaries were distributed after the negotiations, with a difference of 15
MCM/yr. on allocations between Israel and Jordan on the Yarmuk River. This difference was never
resolved, and was the focus of Yarmuk negotiations in the late 1980"s.

Table 5-3 Water allocations from Johnston negotiations

The Israeli Cabinet approved the new plan without vote in 1955. President Nasser of Egypt became an active
advocate because Johnston's proposals seemed to deal with the Arab-Israeli conflict and the Palestinian
problem simultaneously. Among other proposals, Johnston envisioned the diversion of Nile water to the
western Sinai Desert to resettle two million Palestinian refugees.
Despite the forward momentum, the Arab League Council decided not to accept the plan in October 1955
because of the political implications of accepting, and the momentum died out. Although the agreement was
never ratified, both sides have generally adhered to the technical details and allocations even while proceeding
with unilateral development. Agreement was encouraged by the United States, which promised funding for
future water development projects only as long as the Johnston Plans allocations were adhered to. Since that
time to the present, Israeli and Jordanian water officials have met several times a year, as often as every two
weeks during the critical summer months, at so-called "Picnic Table Talks" at the confluence of the Jordan and
Yarmuk Rivers to discuss flow rates and allocations.

The course material has been developed by Professor Joyeeta Gupta.

Page 5

During the next decades, the main point of discussion between Syria and Israel has been the construction of a
dam in the Yarmuk by Syria. Although all parties could potentially benefit from this project, Israel has not
agreed to it, as it felt it would give Syria to much control over the flow rate of the Yarmuk river.
Although the watershed-wide scope of the Johnston negotiations has not been taken advantage of, the
allocations which resulted have been at the heart of ongoing attempts at water conflict resolution, particularly
along the Yarmuk River, where a dam for storage and hydroelectric power generation has been suggested since
the early 1950's.
In the absence of an agreement, both Syria and Israel are currently able to exceed their allocations from the
Johnston accords, the former because of a series of small storage dams and the latter because of its
downstream riparian position. Syria began building a series of small impoundment dams upstream from both
Jordan and Israel in the mid-1980's, while Israel has been taking advantage of the lack of a storage facility to
increase its withdrawals from the river. Syria currently has 27 dams in place on the upper Yarmuk, with a
combined storage capacity of approximately 250 Mm 3 (its Johnston allocations are 90 Mm3/yr. from the
Yarmuk), and Israel currently uses 70-100 Mm3/yr. (its Johnston allocation are 25-40 Mm3/yr.). This leaves
Jordan approximately 150 Mm3/yr. for the East Ghor Canal (as compared to its Johnston allocations of 377
Mm3/yr.).

There are two schools of thought about whether water will be a source of conflict in the 21st
century. The institutional liberal environmental security scholars, liberal institutionalists and
neo-realists tend to argue that water disputes lead to serious conflicts. The alternative school
links serious conflict to identity and political and economic variables.
Ismail Serageldin, erstwhile World Bank vice president for environmental affairs and former
chairman of the World Water Commission argued that the wars of the 21st century will be
fought over water. Frederick Frey finds that water has more potential for conflict than any
other resource, because of its four primary characteristics of political importance, namely
extreme importance, scarcity, maldistribution, and being shared (cited in Villiers 2001).
However, according to Homer-Dixon (cited in Villiers 2001) these conflicts are only likely
under exceptional circumstances. The international water must be of vital importance to the
downstream country, the upstream country needs to be physically able to restrict the river
flow, the downstream country must have sufficient military dominance over the upstream
country and the countries must have a history of antagonism. Homer-Dixon therefore only
considers the Nile region and Middle-East (Euphrates and Jordan river) to be potential zones
of water wars. Based on empirical evidence, Kalpakian (2004) argues forcefully against the
dominant hypothesis that scarcity of resources including water can lead to violent conflict
between nations. Kalpakian concludes on the basis of case studies in the Nile, TigrisEuphrates river basin and the Indus that humans do not engage in serious conflict or war over
a shortage of resources. Instead serious conflict is reserved for matters that touch peoples
identities such as their language, history, heritage and self image (p. 1). This is based on his
definition of conflict to imply war, tense diplomatic standoffs, insurgencies and hostile
diplomatic relations. His finding on the middle east is that while water related conflicts may
The course material has been developed by Professor Joyeeta Gupta.

Page 6

exacerbate the existing political conflict in the region, a functionalist approach that would
pin the regions hopes on technical cooperation is not only unrealistic, it is naive (p. 140).
Hence, there is now increasing literature which points out that there is more evidence of
cooperation between countries that share river basins than actual conflicts.
However, water challenges in existing river basins are likely to be further exacerbated by the
problem of climate change. Global warming will lead to rising sea levels, melting glaciers
and changing hydrological patterns. These changes will affect river basins, their ecosystems
and the social context in which they exist. A major problem for water managers will be the
need to cope with the uncertainty of climate change itself and the underlying data regarding
changes in weather patterns. A consequence of the changing precipitation patterns is that
agricultural and water supply systems will be affected; and may put larger proportions of the
global population at risk. For more details, see Aerts and Droogers (eds.) 2004.
Against this background, the following paragraphs explain how international water law has
developed. It first defines a few terms, moves on to explain the issue of boundary
demarcation between countries and the navigational uses of rivers. It then explains the three
competing processes of law making: namely (a) the developments in international water
governance over the last 2000 years, (b) the policy developments of the last fifty years, and
(c) the impacts of globalisation.

Points-to-ponder: In highly conflictual settings, such as this case, will it be

possible to consider resource issues separate from political issues, such as
Johnston tried? What has been the role of non-riparians in this case, e.g.
Egypt?

5.3

Key Water Law Terms

This section briefly defines a few terms:

Principles: Blacks law dictionary (1983: 622) defines principles as: A fundamental
truth or doctrine, as of law; a comprehensive rule or doctrine which furnishes a basis or
origin for others; a settled rule of action, procedure or legal determination. A truth or
proposition so clear that it cannot be proved or contradicted unless by a proposition which
is still clearer. That which constitutes the essence of a body or its constituent parts. That
which pertains to the theoretical part of a science. A principle is a formula that can be
coherently applied from case to case, from law to law. Because it is applied in a nondiscriminatory manner, it is fair - in that it treats all cases alike. (Unit 6 elaborates further
on principles in water law and Unit 9 on principles in environmental law and politics).
Sovereignty: Blacks Law dictionary (1983: 725) defines sovereignty as: The supreme,
absolute, and uncontrollable power by which any independent state is governed; supreme
political authority; paramount control of the constitution and frame of government and its
administration The power to do everything in a state without accountability, - to
The course material has been developed by Professor Joyeeta Gupta.

Page 7

make laws, to execute and apply them, to impose and collect taxes an levy contributions,
to make war or peace, to form treaties of alliance or of commerce with foreign nations,
and the like. Note this uncontrolled power only applies to relations between states, not
between a state and its citizens. Thus, democracy does not stand in the way of
sovereignty! The principle of sovereignty is a corner-stone of international water and
environmental law (see 6.2.1).
Water Pollution: Pollution of water resources can de defined as the human made or
human induced alteration of the physical, chemical, biological and radiological integrity
of the water resources.
Non-transformationalist uses of water: Non-transformational uses are uses that do not
change the water body. Water is also the home to many living creatures. It is a part of the
ecological system and supports a variety of plant organisms. These nontransformationalist uses include the recreational, aesthetic and ecological uses of water
bodies; floodplains and wetland protection; and water resource enhancement (Goldfarb
1988).
Riparianism: The 19th century doctrine of riparianism states that the right to use stream
water is restricted to the owners of land contiguous or riparian (adjacent) to the stream.
The riparian owner may divert water from a stream only on his riparian land, which must,
by definition be contiguous at some point. This system guaranteed access of water to the
landowners above and/or next to a water source. At the international level, the countries
that lie next to a river or countries that have an international river passing through it are
referred to as riparian states.
International river: An international river is one either flowing through the territory of
more than one state, sometimes referred to as a successive river, or one separating the
territories of two states from one another, sometimes referred to as a boundary or
contiguous river.
International drainage basin: The International Law Association defines an
international drainage basin as 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 (Helsinki Rules, 1966; see 6.3).
International watercourse: Watercourse means a system of surface waters and ground
waters constituting, by virtue of their physical relationship, a unitary whole and normally
flowing into a common terminus (UN Law on the Non-Navigational Uses of
International Watercourses 1997; see 6.6.4 for details).
Point to Ponder: How would you define a watercourse? What would be the
most appropriate definition? Would you prefer watercourse or international
drainage basin?

The course material has been developed by Professor Joyeeta Gupta.

Page 8

5.4
Where is the
boundary
between states
situated on a
shared river?

Boundary Demarcation

When a river forms the boundary of two states, the precise nature of the boundary is often in
dispute. Where a river crosses many states, the boundary is considered to run along a straight
line joining the boundary lines on the two sides of the watercourse. The river is here defined
as a boundary or successive river (see Figure 5-1). When on one bank of a river there is
one country and on the other bank another country, the boundary demarcation becomes more
complicated. During the medieval days, sometimes the boundary was considered to be the
bank and the river was "res nullius", i.e. belonged to nobody. Sometimes the river was
considered to be "res comunis" belonging to both countries.
Sometimes, when one of the two nations is more powerful, it can gain control over the river
up to the other bank by a Treaty. Thus Iraq gained control over the Shat-el Arab and had
sovereignty over the river up to the riverbank in Iran. This was modified by a later agreement
of 1975.
Figure 5-1. Boundary demarcation for successive river

The course material has been developed by Professor Joyeeta Gupta.

Page 9

One common practice is to appoint the median line as the boundary line. This is the
imaginary line equidistant from either river bank, also corresponding to the geometric centre
of the river. This creates complications for navigation purposes, as the depth is a more
relevant feature than the breadth for navigation. This led to another practice of seeing the
boundary as the Thalweg line, which is the deepest part of the river, or the median line of the
deepest channel.

Figure 5-2. Thalweg (left) and median line (right) for an example river section

Does the
boundary
change if the
river changes
course?

When the river moves because of natural causes, then the general rule is that if it moves
suddenly, the boundaries remain as they were. However, if it moves gradually, the
boundaries would have to follow the shifting line of the watercourse. Between 1986 and
1992, and recently again in 20033, El Salvador and Honduras went to the ICJ over the
question if the change of course of the Goascorn boundary river has occurred gradually or
suddenly. In a judgement of the ICJ in 1992 the boundary line between the two countries
along the stretch of the river and with respect to the marine territory and islands in the Gulf of
Fonseca was defined. The ICJ decided that the current course of the river should determine
the border between El Salvador and Honduras (ICJ 1992). Thus, the court decided in favour
of Honduras, who claimed that the river had moved suddenly and hence, the boundary lines
would have to adapt to the new river bed. It rejected the claim of El Salvador to base the
frontier between the two countries on the course of the Goascorn river as it had been, since
in 1762, a change occurred depriving El Salvador of a territory of 76 km2 (La Prensa, 2003).
Point to Ponder: Where should the boundary be on a bridge between two
countries? How is the boundary defined in relation to the international rivers
flowing through your country?

The case of 2003 was considered inadmissible because no new facts had been presented in relation to the
judgement of 11 September 1992. Source ICJ, summary of judgment (2003).

The course material has been developed by Professor Joyeeta Gupta.

Page 10

5.5

Navigational Uses of Rivers

Three principles with respect to the navigational uses have crystallised over time:
the principle of freedom of navigation and of commerce for the riparian states;
the freedom of commerce, but not of navigation of non-riparian states4; and
the duty to consult and settle all matters concerning navigation by common agreement
among riparian states (The Congress of Vienna, 1815).
In 1921 in Barcelona, the League of Nations adopted the Convention and Statutes on the
regimes of Navigable Waterways of International Concern. Article 14 of this Convention
provided that international river commissions would be set up to draw navigation regulations,
to recommend maintenance works, with the right to receive information from the states about
improvement projects and the power to approve charges.
Although this Convention was only ratified by 20 countries, it is arguable that all the former
colonies have succeeded to this Convention.
Since then there have been different treaties applying to different regions. For a discussion of
the new rules on navigation proposed by the International Law Association in 2004, see
6.5. Furthermore, see 6.3 for a description of the International Law Association).
Point to Ponder: What navigation rules apply to the international rivers in your
country?

5.6
5.6.1
What parallel
governance
processes can
be
distinguished?

Introduction

In the area of water, three parallel governance processes can be distinguished. The first is the
2000-year bottom-up process of law and policy making from local level to global level. The
second is the top-down process of water policy making from global to local level that has
developed over the last fifty years. The third is not a conscious process of water governance
but is the result of the forces of globalisation, which have led to the liberalization of markets,
finance and investments and these too have had impacts on water management (see also
3.3).

5.6.2
Why are many
concepts in
water law
universal?

The Historical Evolution of Water Governance: a bottom-up approach 5

The bottom-up approach

Since water law exists in a variety of contexts, it differs from region to region. This is
because the regional and fluvial circumstances are different; the cultural context is different,

In practice this means non-riparian states have to negotiate (a price for) access to the river, but once they are
allowed to navigate the river, they are free to sell and buy goods at its banks.
This section is a reprint of parts of Gupta 2004.

The course material has been developed by Professor Joyeeta Gupta.

Page 11

the bargaining power of the countries concerned is different and the uses of water have
developed at different speeds.
How did
concepts spread
?

And yet, water law in different parts of the world is inspired by quite similar concepts. This is
because ideas have moved around the world throughout history. The fundamental principles
of ancient Hindu and Islamic water law permeated societies through the spread of religion.
Subsequently, Roman water law principles were brought to Continental Europe by Napoleon.
In the last three to four centuries, British, French, Spanish and Dutch water law spread to the
developing countries through colonization. In the 20th century, communist water law
principles spread to the communist bloc of countries (See unit 10 for details). Codification, or
the legal process of writing the state of the art of international law, then influenced the
drafting of text in new regional water treaties. For example, the Helsinki Rules developed in
1966 by the International Law Association were used as reference material by negotiators in
recent decades working on regional treaties (see 6.3 for details). Epistemic communities or
scientific networks spread new scientific concepts such as the hydrological unity of water and
integrated water resources management. New legal concepts such as sustainable development
(see 9.2) are being developed by scholars, and these too influence the law making process
by being a secondary source of law (revisit unit 1 for explanation). And now finally with
globalization, concepts such as private sector participation and liberalization are influencing
water law (see also unit 8).
As the basic concepts, principles and developments in water management circulate globally,
water managers in different parts of the world essentially choose from the same menu of
choices in relation to water management which includes the concepts of ownership
(riparianism, prior appropriation), rights and responsibilities, principles, non-compliance
mechanisms and liability at national level; and the principles of restricted territorial
sovereignty as well as no-harm, equitable and reasonable utilization at international level.
Figure 5-3. Multi-layered nature of local, regional and national water law

The course material has been developed by Professor Joyeeta Gupta.

Page 12

Why is water
multi-layered?

In other words, water law is multi-layered, where some layers are common and some are
different leading to unique situations everywhere. There is a layer of custom and religion;
which is then influenced by conquest and colonization, by legal codification, modern
scientific concepts and globalization. These layers are superimposed on one another as
depicted in Figure 5-3, which does not imply that only the latest text on paper is a true
reflection of the situation in the region. Hence, in order to design effective water laws and
policies, it is essential to understand the complexity, diversity and dynamism of the existing
water institutions.
The similarities in water governance in different regions of the world were codified in the
1966 Helsinki Rules prepared by the International Law Association (see 6.3) and more
recently in the 1997 UN Law of the Non-Navigational Uses of International Watercourses
although the latter has yet to enter into force (see 6.4).

Why is it that
after centuries
of development,
governance is
still not
adequate?

Despite such a long history, there are major water problems and these can be attributed to
failures in governance since firstly, legal institutions from local through to global levels have
not been able to keep up with the changing nature of the use and abuse of water resources.
Second, while water governance was centralized, decision-making was scattered in different
ministries. Third, water institutions have been influenced by mono-disciplinary insights.
Fourth, river basin governance was fragmented along administrative boundaries.
Point to Ponder: What hybrid combination of laws and policies exist in your
country?

5.7
What have been
the milestones
in global water
policy?

The Progress in Global Policy Making: a top-down approach

The urge to think and act globally led politicians and water experts to meet at the first UN
Conference on Water at Mar del Plata in 1977. Since then, there have been meetings, inter
alia, in Dublin, Rio, Marrakesh, The Hague, Johannesburg and Kyoto. But it was the
Millennium Declaration in 2000 and the World Summit on Sustainable Development in 2002
that articulated global Millennium Development Goals on water access and sanitation (See
Unit 9 for details). One of these goals is to halve the proportion of people without access to
safe drinking water and sanitation by 2015. However, this goal is not included in a legally
binding document, nor is it accompanied by concrete measures. Thus, we have goals but no
clear implementation options and the legal and policy world go their individual ways. All
these documents have also elaborated on a number of concepts of water management
including integrated water resource management (IWRM).
Integrated water resource management is a concept that has evolved over the last 80 years
and went through three phases single purpose management of water resources, multiple
purpose management of water resources followed by integrated water resource management
(White 1998). A number of policy processes have dealt with water management issues
culminating in the adoption of the concept by the Dublin Conference on Water in 1992 and
by Agenda 21 of the United Nations Conference on Environment and Development. This is
summed up in the Table below.

The course material has been developed by Professor Joyeeta Gupta.

Page 13

Table 5-4: IWRM Concept Evolution in the International Water Policy Sector
Year

International Water
Policy Sector
Developments

Key principles/issues/ targets agreed upon

1972

UN Conference on Human
Environment, Stockholm

Principle 13 of the Declaration: To ensure that water development is

compatible with the need to protect and improve environment

1977

UN Water Conference, Mar

Del Plata in Argentina

Encouraging governments to establish guidelines for effective intervention

plans for comprehensive and effective water resources management

1992

International Conference on
Water and Environment,
Dublin

Harmonization of development and environment; participatory approach to

management ; gender mainstreaming in the provision and management of
water; recognition of water as an economic good; management of
international watersheds endorsed and backed by international agreements.

1992

UN Conference on
Environment and
Development, Rio de
Janeiro

By the year 2000: (i) Put in place appropriate institutional structures and
legal instruments; (ii) establish efficient water-use programs to attain
sustainable resource utilization patterns.

1997

1st World Water Forum,

Marrakech

Renewed partnership to operationalise the Mar del Plata and Dublin

Principles and Chapter 18 of the Rio Summit for sustainability of water
resources.

2000

2nd World Water Forum,

The Hague

Call for coherent national and, where appropriate, regional and international
policies to overcome fragmentation, and for transparent and accountable
institutions at all levels for IWRM.

2002

World Summit on
Sustainable Development,
Johannesburg

By 2005 each state should prepare its IWRM policies including its efficient
use of water plan

2003

3rd World Water Forum,

Kyoto

By 2005 each state is encouraged to prepare its plan of IWRM and its water
efficiency plan.

2005

World Summit on MDGs

Added an important proviso to the 2002 WSSD Plan of Implementation

(JPOI): foreign assistance should be provided to developing countries in
preparing IWRM and water efficiency plans as part of comprehensive
national development strategies to achieve the MDGs.

2006

4th World Water Forum,

Mexico

Expressed awareness and responsibility of local and regional leaders

concerning water and sanitation and called on national governments for a
more effective partnership in IWRM implementation

2009

5th World Water Forum,

Istanbul

UNESCO IWRM Guidelines on Consensus for Local and Regional

Authorities for water management in the face of global changes

By 2025: achieve sub-sectoral targets of all freshwater programmes based on

General Assembly resolution (financial transfer of 0.7% of GDP from
developed countries to developing countries).

Source: Agyenim 2010.

The course material has been developed by Professor Joyeeta Gupta.

Page 14

Integrated water resource management includes integrated river basin management. Hooper
(2005:9) defines IRBM as an integrated and coordinated approach to the planning and
management of natural resources of a river basin, one that encourages stakeholders to
consider a wide array of social and environmental interconnections, in a watershed context.
Some focus on integrated watershed management (Cardwell et al, 2006:16), some on
catchment management and some on resource management. IWRM combines these ideas and
is defined as A process which promotes the coordinated development and management of
water, land and related resources, in order to maximize the resultant economic and social
welfare in an equitable manner without compromising the sustainability of vital ecosystems
(GWP 2000: 22).
IWRM involves sectoral; geographical; economic, social and environmental; and
administrative integration. It has three pillars an organizational framework, management
instruments and enabling environment (GWP, 2004). IWRM calls for a systems approach in
which the relationships between natural and human systems are studied and managed; a
strategic approach where a choice is made to focus on some specific issues; a partnership
approach where the state and other stakeholders collaborate in water management; and a
balanced approach in which different dimensions are given equal priority. Where it is seen as
a process, IWRM is also seen as a method to mediate between different interests and interest
groups (Genshaw and Born, 2006) and disciplines (Boutkan and Stikker, 2004:151).
Although it is seen as a positive concept to be holistic and comprehensive, it is also seen as
providing little practical guidance (Biswas, 2004), its unclear whether it is a process or a
goal, water is valued differently by different interest groups and this is difficult to take into
account (McDonald & Ruiters 2005), and there is little real scientific consensus on the
content.
What are the
arguments
supporting
global policy?

In 2008, at the global level, 13% of the worlds populations (1.1 billion people) did not have
access to an improved drinking water source. This percentage varies per region; in the
developed regions less than 1% lacks access, in developing regions 16%, and in sub-Saharan
Africa 40% of the population lacks adequate drinking water. Only 52% of the population of
the intrinsically developing world has access to adequate sanitation; in sub-Saharan Africa
and South Asia this number is even lower (Millennium Development Goals Report 2010).
Access to water and sanitation is thus only a serious problem in the South, and that may be
why the motivation to make it a global agenda item has been weak. One might argue that if
the right to water is seen as a human rights issue, this would justify internationalising the
problem of water (see unit 6.6). Neither the Watercourses Convention nor the Water and
Environmental Summits have adopted this concept, focusing instead on the non-legal concept
of human needs. However, in 2002, a General Comment on the Right to Water was adopted
by the Covenant on Economic, Social and Cultural Rights. The concept of the right to water
has now become enshrined in law. But whether this will have mainstream effects remains to
be seen. On the issue of the human right to water and sanitation, see also 6.6.

The course material has been developed by Professor Joyeeta Gupta.

Page 15

Another argument to prioritise water at the global level is the global problem of climate
change and its impacts on the global hydrological cycle. The third critical argument for
globalizing water is the effect of globalisation itself on water which will be discussed further
in the next section.
Point to Ponder: Which global issues affect your country most? Does behaviour
of your country also affect other countries?

5.8
Why is there
tension between
globalisation
and
sustainability?

The Impacts of Globalisation: a diagonal approach

Contemporary globalisation is a process made possible by two related developments since the
1960s. The first is the compression of time and space due to technological innovation which
particularly transformed communication technology. This in turn allowed the financialisation
of the global economy, in which financial markets have become more important than capital
goods markets.
Central to globalisation are the ideologies of growth-oriented capitalism, liberalization and
privatisation. This implies that the more societies invest, produce and consume the richer
they will become. Growth oriented capitalism and consumerism is based on the use of more
and more resources such as energy and water. The former exacerbates the climate change
problem while the latter exacerbates the existing water problem. At the same time, the social,
environmental and water protection agendas argue that there are limited resources and these
resources need to be used wisely. These two messages are contradictory.

What are key

points of
attention in
privatisation?

Two points can be highlighted. The first is that the message of privatisation is also being
incorporated in national and regional policy. Since most private sector involvements thus far
have led to a monopoly control of water in a profit-making sector, the price of water has
increased. This might make water unaffordable for the poor, those targeted by the Millennium
Declaration, and this fear drives critics to talk in terms of theft from the poor and the need
to revisit the discussion on a human right to water.
The second argument is that private sector involvement, by definition, implies a legal
contract often not transparent or accessible to the public. Such contracts are governed by the
rules of private (international) law, bilateral investment treaties and / or free trade
agreements. Furthermore, private sector involvement in the context of developing countries
often comes at the cost of demanding state guarantees for the profits to be generated.
Although the legal situation is not yet crystal clear, scholars argue that once countries decide
to privatise and liberalize water, they may in effect lose control over the management of
water; and to the extent that they try to manage this water, they may be sued in foreign courts
and in hard currency (see unit 8).
Point to Ponder: Is your country liberalising water? If so, are the consequences
clear?

The course material has been developed by Professor Joyeeta Gupta.

Page 16

5.9

Conclusion

There is a gradual convergence occurring between the three parallel processes in that some
concepts are increasingly emerging as dominant in the national and regional water law
developments that have been taking place in the last decade. But there are also some
contradictory trends. The first trend is that while governments are seeking effective control
over their water resources by designing new laws, the concepts of private sector involvement
and management at river basin level is leading to an erosion of functional sovereignty over
water. The second trend is that while IWRM includes the jargon of public participation in
decision-making, justified by the need to increase the legitimacy and effectiveness of policy,
initial research shows, inter alia, that such local participation may lead to disintegration of
policy and externalisation of the policy interests of actors at other administrative levels.

5.10 New Terms Used

Boundary demarcation Global water policy Globalisation Integrated Water
Resources Management (IWRM) International drainage basin International river
International watercourse Median line demarcation Multi-layered nature of
local, regional and national water law Navigation Non-transformational uses of
water Riparianism Sovereignty Thalweg demarcation Water conflicts Water
law evolution Water pollution

5.11 References and Further Information

5.11.1 References
Aerts, J.C.J.H. and Droogers, P. (Eds.) 2004. Climate change in Contrasting River Basins: Adaptation Strategies for Water,
Food and Environment.
Agyenim, J.B. (2011). Investigating institutional arrangements for integrated Water Resource Management in Developing
Countries: The Case of the White Volta Basin, Ghana, PhD Thesis, VU University Amsterdam.
Blacks Law Dictionary: Bryan A. Garner (editor in chief), 1999, Blacks Law Dictionary 7th Edition, West Group, St.
Paul, Minnesota, USA.
Boutkan, E. and Sticker, A. (2004). Enhanced Water Resources Base for Sustainable Integrated Water Resources
Management. Natural Resources Forum 28(2):0105.
Cardwell, H.E., Cole, R.A., Cartwright, L.A., & L.A. Martin (2006). Integrated Water Resources Management: Definitions
and Conceptual Musings, Journal of Contemporary Water Research & Education 135:8-18.
CIA (2010), World Factbook 2010, [Link]
Genshaw, K D & Born S M. (2006). Organisational Dynamics of Watershed Partnerships: A Key to Integrated Water
Resources Management. Journal of Contemporary Water Research Education 135: 56-64.
Gleick (2003), The Water Conflict Chronology, [Link]/conflict.
Goldfarb, W. (1988) Water Law, Second Edition, Lewis Publishers, New Brunswick.

The course material has been developed by Professor Joyeeta Gupta.

Page 17

GWP-TAC (Global Water Partnership-Technical Advisory Committee) (2000). Integrated Water Resources Management.
TAC Background Paper No. 4, GWP, Stockholm, Sweden.
GWP (Global Water Partnership) (2004). Integrated Water Resources Management (IWRM) and Water Efficiency Plans
by 2005. Why, What, and How? TAC Background Paper No. 10, GWP, Stockholm, Sweden.
Hooper, B. (2005). Integrated River Basin Governance: Learning from International Experience. London: International
Water Association Publishing.
Kalpakian, J. (2004) Identity, Conflict and Cooperation in International River Systems, Ashgate Publishers, Aldershot.
La Prensa (2003, 01.02.2011). Corte de La Haya rechaza peticin salvadorea La Prensa, El diario de los
Nicaragenses:23307. Retrieved from [Link]
Nicol, A. and Shahin, M. (2003). The Nile: moving beyond cooperation. Water Policy Programme, ODI. International
Hydrological Programme (IHP) of the United Nations Educational, Scientific and Cultural Organization
(UNESCO). Technical Document in Hydrology No. 16.
([Link] )
Nicol, A. (2003): The dynamics of river basin cooperation: The Nile and Okavango basins, in: A. Turton et al. (eds.),
Transboundary Rivers, Sovereignty and Development: Hydropolitical drivers in the Okavango River Basin,
Pretoria: African Water Issue Research Unit, Green Cross International.
Transboundary Freshwater Dispute Database (TFDD) (2008, 01.02.2011), Case Studies-Water Conflict Resolution,
Department of Geosciences, Oregon State University, [Link]
Transboundary Freshwater Dispute Database (TFDD) (2002, 01.02.2011), International River Basin Registry,
Department of Geosciences, Oregon State University [Link]
UN DESA (2010). The Millennium Development Goals Report. L., United Nations Department of Economic and Social
Affairs.
White, G. F. (1998), Reflections on the 50-year International Search for Integrated Water Management, Journal of Water
Policy 1: 21-27
Villiers, M. de (2001) Water: The fate of our most precious resource. Maurei Books: Boston

5.11.2 Legal materials

Convention on the Law of the Non-Navigational Uses of International Watercourses, New York, May 21, 1997, Doc.
A/51/869 adopted in Resolution A/RES/51/229.
International Convention Concerning The Regime of Navigable Waterways of International Concern, Barcelona, April
20,1921, League of Nations, Treaty Series, Vol. VII, p. 37.
International Court of Justice (1986-1992, 2002-2003) Land, Marine and Island Boundary Dispute between El Salvador
and Hondarus (Nicaragua intervening) - Judgement, [Link] 1986-1992)
International Court of Justice (2005) Boundary dispute between Benin and Niger (river Niger) - Summary of the
Judgement of 12 July 2005, [Link]
International Court of Justice (2010). Pulp Mills on the River Uruguay (Argentina v. Uruguay): Summary of the Judgment
of 20 April 2010, [Link]
UN. (2002). Johannesburg Declaration on Sustainable Development, World Summit on Sustainable Development
(A/CONF.199/20). Johannesburg.
The Helsinki Rules on the Uses of the Waters of International Rivers, Adopted by the International Law Association at the
fifty-second conference, held at Helsinki in August 1966. Report of the Committee on the Uses of the Waters of
International Rivers, London, International Law Association, 1967.

The course material has been developed by Professor Joyeeta Gupta.

Page 18

5.11.3 Recommended reading

Gupta, J. (2004). (Inter)national Water Law and Governance: Paradigm Lost or Gained?, Inaugural Address as Professor
of Policy and Law on Water Resources and the Environment, Department of Management and Institutions at the
UNESCO-IHE Institute for Water Education in Delft, The Netherlands, 22 March 2004; ISBN: 90-73445-11-6.

5.11.4 Web sites

Transboundary Fresh Water Dispute Database [Link]
Case Studies: Water Conflict Resolution [Link]
International Freshwater Treaties Database [Link]
International River Basins Register [Link]
International Water Event Database [Link]

UNESCO - [Link]
Water Portal - [Link]
World Water Assessment Programme - [Link]
From Potential Conflict to Cooperation Potential project (PC-CP)
[Link]
International Water Management Institute
[Link]
IWMI Publications List [Link]
World Water Council [Link]

The course material has been developed by Professor Joyeeta Gupta.

Page 19