The United Nations General Assembly adopted a "Watercourse Convention" in 1997. The Convention has not entered into force because large numbers of countries have not ratified it. Nevertheless, the principles enshrined in the Convention bring out the inherent problems in the distribution of water between two parties whether these are two sovereign countries or two states within a country. The Convention states two basic principles, namely, "equitable and reasonable" distribution of water, and "not causing significant harm" to the other party.
One can apply these principles to interstate water disputes such as between Karnataka and Tamil Nadu on sharing of waters of the Cauvery River. The first principle of "equitable and reasonable" distribution of water means that the interests of both the states must be safe-guarded. It should not happen, for example, that farmers of Karnataka provide 20 irrigations to the crop of mulberry while crops of paddy wilt in Tamil Nadu because they do not get water for a single irrigation. It is not possible to define "equitable and reasonable" beyond this. Well, farmers of Karnataka may provide 10 irrigations while farmers of Tamil Nadu provide five irrigations. It is impossible to determine whether this is equitable or not. A change in circumstances complicates problem. Irrigation was the main use of the waters of Cauvery earlier. The city of Bengaluru has grown many times since then. The country is earning crores of rupees from the exports of software written in the city. Residents of Bengaluru may get only 10 litres of water a day while farmers of Tamil Nadu provide five irrigations to their crops of paddy. It is not easy to decide whether this distribution is "equitable and reasonable." Karnataka may argue that drinking water stands at a higher priority than irrigation, as stated in the National Water Policy. On the other hand, Tamil Nadu may argue that livelihood of its farmers is at stake and that it has customary right on the waters of Cauvery for the last many centuries. It is not possible to decide these arguments on a scientific or legal basis. One can interpret the principle of "equitable and reasonable" to suit one's interests and the principle, therefore, is toothless.
The second principle stated in the UN Convention is "not causing significant harm" to the other party. The word "significant" is, once again, difficult to define. It is not possible to decide this on scientific basis. In the result, both the principles in the UN Convention are useless. This highlights the difficulties in distributing water between Karnataka and Tamil Nadu. No wonder distribution of water between sovereign states takes place by the relative "power" of the contending parties. Israel consumes 80 percent of the water of the West Bank not because it is "equitable and reasonable" but because Israel is militarily strong while Jordan is weak.
Another principle invoked for the distribution is that of customary rights. A paper by the European Society of International Law says, "The core principles of international water law are commonly viewed as having customary status." This principle states that Karnataka must not switch off the taps if Tamil Nadu has customarily been using the waters of the Cauvery. This principle stands against the need to modify a principle according to changing circumstances. Say, farmers of a village used the water of a river for irrigation of their fields. A software company established a software park in the vicinity. Youth of the village got jobs in the software park. The authorities will have to strike a balance between "customary rights" and "changing circumstances." Therefore, Karnataka cannot ignore the customary rights of Tamil Nadu while Tamil Nadu cannot ignore the increased requirements of drinking water due to the development of the city of Bengaluru. However, once again these principles are toothless. It is difficult to determine the extent of the customary rights and the changing circumstances.
One cannot distribute water between Karnataka and Tamil Nadu on this basis, however, because neither state has power in true sense of the word. The "power" lies with the Union Government.
Thus, interstate water disputes are a failure of the Union Government in distributing water taking into account both the customary rights and changing circumstances.
The Union Government, in turn, does not want to take a decision because it is liable to be criticised by both the parties irrespective of what decision it takes. This failure is leading to conflicts between Karnataka and Tamil Nadu, and Punjab and Haryana.
There is a need to develop place on the table transparent principles for making this distribution. A way out would be as follows. First principle should be to provide adequate drinking water to the people, and ensure minimum environmental flows for the fish and the survival of the river itself. The customary rights may be defined as the usage during the last 10 years. Defining customary rights in this way will both provide for continuity and change. These will automatically change with time as the usage changes. The Union Government may auction the remaining one-half between the two states. Both states would get an equal opportunity to acquire that water. The state that has higher need for water will be willing to pay more and buy the water. This would be equitable because both states will get an equal chance to buy the water. The Union Government may use the money obtained for the development of the two states. The Union Government must develop some such a transparent system of distribution of interstate waters, and enforce it and save the country from unnecessary disputes.
There is a lesson in this for the ongoing dispute with Pakistan. India entered into the Indus Water Treaty in the fifties. Circumstances have changed since then. It is time to renegotiate it. But one should remember that international distribution of water takes place, ultimately, by power.
Vol. 49, No.40, April 9 - 15, 2017