Common legal liability in relation to the use of transboundary waters

Due to the vast history of the use of transboundary rivers, a comprehensive legal framework has been prepared by the United Nations (UN) on the rights and obligations of the countries settled along such rivers. From the International Water Law perspective, no country' is allowed to use its authority (absolute) on transboundary rivers to harm its neighbour. Under the UN Watercourses Convention, two rules apply on sharing international waters: (1) equitable utilisation; and (2) no significant harm.³² The obligation of ‘no significant harm’ stipulates that the watercourse state, while using the international watercourse in its territory, will take all appropriate measures to prevent causing any significant harm to other watercourse states. This includes harms to water use, health, safety, etc. Importantly, as this obligation is not an absolute prohibition but a due diligence responsibility of prevention, thus forth, compliance depends not only on the harm caused but is also determined by the state’s conduct with regard to preventive behaviour to avoid the harm in question. In the KEHP case, India’s conduct to avoid harm to Pakistan is clearly deficient.

Although it is difficult to define each legal subject matter of the rules established under the prevailing law here, the tradition of the international community and the decisions of the tribunals strengthen various important principles that are related to the use of international rivers. While rejecting the claim of full regional sovereignty over the waters of transboundary rivers; the prevailing legal format is based on legal principles to ensure legitimate use of water resources and to protect other countries located across the border.

The rule of limited regional sovereignty means that any country can use the water of the shared rivers flowing in its territory, as long as it does not harm the interests of other countries located on the banks of the river.³³ In the Lake Lanoirx arbitration case, this rule was confirmed as a prevailing law. This dispute flared up because of a project lavtnched by the French government on Lake Lanoux in the Pyrenees mountain range. The Spanish government feared that its interests might be affected. The International Tribunal upheld that the country with the upper part of the river had an obligation to keep the riparian interest downstream in sight too.³⁴ The same proposition is recognised in the IWT.

The principle of equitable and fair use of shared water resources has also been confirmed by the International Court of Justice (ICJ) in the Gabcikovo- Nagyrnaros case between Hungary and Slovakia for a dam on the Danube, in

1997. Hungary and Slovakia signed an agreement to jointly build this project in their respective countries to prevent flooding and provide electricity. Later because of environmental concerns and the fall of the socialist government, Hungary decided to abandon the project and back out of the agreement. Consequently, Slovakia decided to cany' on with the project in its own territory in such a manner that it would affect the flow of the Danube in Hungary. Both countries went to the ICJ. According to the decision of the court, the design was modified to protect Hungarian concerns and Hungary was obliged to cany out the modified construction. Thus, the ICJ established the legal principles that unilateral withdrawal from a treaty is inadmissible and that all the countries located on river banks must refrain from any kind of preferential use of the full stream river.³⁵ Thus, it was observed that under international law, no country can unilaterally control shared resources and also no country on the banks of the river should be deprived of the right to a fair and equitable share of the natural resources of the rivers. Likewise, in the India-Pakistan case, the IWT requires both countries to endorse the principle of equitable and reasonable use, taking into account the existing and future potential population-dependent and socioeconomic needs.

Preventing damage to any country' across the border is another obligation of the prevailing international law and a fundamental law which camiot be ignored by any country’s development policy. Therefore, if any development project will cause significant damage to the environment of another country, it is obliged to stop the project or reduce the loss.³⁶ A permanent arbitration court confirmed this rule in matters relating to Pakistan’s dispute against the KHEP of India. Its interpretation explained that being a lower country on the bank of the river, Pakistan had the right to the minimum environmental flow of the Kishanganga/ Neelam Dam, which meant that India was required to ensure environmental protection.³⁷

In 2010, in the dispute between Argentina and Uruguay over the construction of pulp mills on the Uruguay River, the ICJ recognised an environmental impact assessment (EIA) as a duty to act with circumspection.³⁸ Explaining a special provision of the bilateral water-sharing treaty that the parties have liability to prevent potential environmental damage to each other, the court issued useful explanatory guidance on the subject matter of the necessity for proper circumspection to be observed. The ICJ expressed the need to make an environmental assessment while giving its opinion in the Uruguay-Argentina pulp mill case. Although this was a dispute related to obligations under the bilateral agreement between the parties (the 1975 Uruguay River Act), however in this matter, the court said that this treaty codifies the current obligations imposed under the prevailing law. It further stated:

- the treaty should be interpreted according to the prevalence, which in recent years has been accepted between [the countries] to such an extent that it has now been granted to the general international rule to assess the environmental impact of that place. The internal requirement has to be understood, where there is a danger in the transboimdaiy context of the proposed industrial activity, especially on the shared resources. Not only this, if country is responsible for influencing the river system or the quality of water, if the party planning to do any work is responsible for the possible impact of those tasks and the environmental impact in relation.³⁹

Regarding environmental protection, a ruling of the United Nations General Assembly stressed upon concerned countries to make technical data publicly available. However, this should be done in ‘a spiiit of cooperation and good neighbourliness’. As ‘[Without this,] programs and projects relating to the exploration, utilisation and development of the natural resources of each country' in which such programs and projects are being carried out ... [are subject to] delay or inhibiting hurdles.’⁴⁰ This prevailing legal liability establishes an institutional framework comprising bilateral commissions. These have been included in various bilateral water-sharing agreements. These commissions review, consult and decide on individual projects being implemented on transboundary' rivers. In particular, the obligation to assess the environmental impact by countries is considered to be the most important step in observing this code of cooperation. Without an assessment of the environmental impact of a project, the duty of notifying countries and mutual consultations becomes redundant due to the possibility of getting into unforeseen transboundary risks.

Reportedly, the KHEP has caused seiious water and health concerns on both sides of Kashmir (J&K and AJK). People in the Neelum Valley and Muzaffarabad (part of AJK) are struggling for clean water and battling health problems due to pollution.⁴¹ While the KHEP is located in the J&K (the part under Indian control), the areas harmed mainly are located on Pakistan’s side. Furthermore, India’s dam construction necessitates the impact assessment of costs and benefits. In 2012, Delhi University’s Centre for Inter-Disciplinary Studies of Mountain and Hill Environment (CISMHE) carried out an EIA and warned that, apart from pollution, the dam would endanger the Himalayan plant and animal species.⁴² According to the World Commission on Dams (WCD) ‘the end of any dam project must result in ... improvement of human welfare ... and [be] environmentally sustainable’.⁴³ The KEHP has neither improved the welfare of local people nor it is environmentally sustainable.