122
10 The Resilience of Transboundary Water Governance …
meant to provide key guidance for all allocation questions (Rieu-Clarke et al. 2012).
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
practice (Baranyai and Bartus 2016). In fact, the weak guidance given by the principle
does not even amount to a common frame for reference (Wolf 1999). Therefore, its
success largely depends on the effectiveness of their administration and enforcement
(Rai et al. 2016). As a result, the equity concept has very little practical impact on
actual water sharing mechanisms (Giordano 2002).
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
2 specifically covers certain critical uses riparian states
may rightfully pursue (agricultural, domestic, environmental and industrial use) and
the pertinent flow regulation measures (Art. 3.2.). 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 define mechanisms for water allocation on the basis of the Revised Protocol (e.g. the 2002
Incomaputo Agreement concerning the Incomati and Maputo rivers
3 ).
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
4 sets minimum and maximum flow requirements for the mainstream for the dry season, the wet season as well as defines acceptable minimum
monthly natural flows (Art. 5–6.). It also lays down mechanisms and institutions for
the determination of actual flow quantities in the lower Mekong basin (Art. 26.).
Similarly, the 2002 Charter of Waters of the Senegal River
5 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 Charter (Art. 19.). Another well-known water sharing mechanism
has been instituted among the Central-Asian republics of Kazakhstan, Kyrgyzstan,
Tajikistan, Turkmenistan and Uzbekistan under a 1992 agreement.
6 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
2 SADC Revised Protocol on Shared Watercourses, Windhoek, 7 August 2000.
3 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.
4 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin,
Chieng Rai, 5 April 1995.
5 Charter of Waters of the Senegal River, 28 May 2002.
6 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.
10 The Resilience of Transboundary Water Governance …
meant to provide key guidance for all allocation questions (Rieu-Clarke et al. 2012).
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
practice (Baranyai and Bartus 2016). In fact, the weak guidance given by the principle
does not even amount to a common frame for reference (Wolf 1999). Therefore, its
success largely depends on the effectiveness of their administration and enforcement
(Rai et al. 2016). As a result, the equity concept has very little practical impact on
actual water sharing mechanisms (Giordano 2002).
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
2 specifically covers certain critical uses riparian states
may rightfully pursue (agricultural, domestic, environmental and industrial use) and
the pertinent flow regulation measures (Art. 3.2.). 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 define mechanisms for water allocation on the basis of the Revised Protocol (e.g. the 2002
Incomaputo Agreement concerning the Incomati and Maputo rivers
3 ).
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
4 sets minimum and maximum flow requirements for the mainstream for the dry season, the wet season as well as defines acceptable minimum
monthly natural flows (Art. 5–6.). It also lays down mechanisms and institutions for
the determination of actual flow quantities in the lower Mekong basin (Art. 26.).
Similarly, the 2002 Charter of Waters of the Senegal River
5 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 Charter (Art. 19.). Another well-known water sharing mechanism
has been instituted among the Central-Asian republics of Kazakhstan, Kyrgyzstan,
Tajikistan, Turkmenistan and Uzbekistan under a 1992 agreement.
6 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
2 SADC Revised Protocol on Shared Watercourses, Windhoek, 7 August 2000.
3 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.
4 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin,
Chieng Rai, 5 April 1995.
5 Charter of Waters of the Senegal River, 28 May 2002.
6 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.