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Table 8.5 Demands of Andhra Pradesh

Since water is obviously a finite and scarce resource and there are always competing demands for limited water such as for drinking, irrigation, industrial use, conflict is inevitable. Yet conflict could be reduced if the limits of water availability are accepted. However, all water development plans ignore these limits. Water is borrowed from the future, as if it was money. The term 'water overdraft' is a legitimate one in the vocabulary of engineers and economists. On the basis of this logic, water projects have been planned on the Krishna, which is seriously 'over appropriated'. Competing regions demand rights to Krishna waters which exceed the water supply. This is the primary reason for conflicts over Krishna waters in spite of allocations by the Krishna Tribunal.

Another reason why the Tribunal award for the use of water in the Krishna basin has not succeeded in resolving water conflicts is rooted in the inheritance of the logic of privatisation from American law, which the Krishna Water Disputes Tribunal has used by citing precedence on water conflicts and their resolutions from the law in the USA. According to this principle of priority of appropriation, the one who first appropriated water and put it to beneficial use, thereby acquires a vested right to continue to divert and use that quantity of water against all claimants junior to him in point of time. 'First in time, first in right' is the shorthand expression of this legal principle, which assumes that the exclusive right to use water is established by the act of diversion. The acceptance of this legal framework is the major reason that co-riparian states are trying to outdo each other in water development projects, often without adequate assessment of ecological viability or social equity.

The transfer of American concepts of water rights is accompanied by the transfer of American technologies for building big. The transfer of these concepts encourages extravagant use of water even in water scarce conditions since rights can be lost if the water is not appropriately used. According to the prior appropriation doctrine, to conserve water means to lose it. This fear of loss of water rights in the future has created the pressure for building dams and large water projects in spite of fiscal and environmental constraints. While the absolute and exclusive rights to water through the priority of appropriation have been slightly diluted in India by the consideration of the priority of need, the thrust in water planning and the. settling of water disputes is still provided by the 'first come, first serve' logic of dam building. The main reason that the state of Karnataka is resisting the Telugu Ganga project is because it fears that through it Andhra Pradesh will establish claim to 300 TMC of Krishna waters in spite of having paper rights to develop its water. The unclear and unresolved clash between competing legal systems further aggravates conflicts over nter-state rivers.

Conflicting perceptions of water rights

There are four theories which have been put forward with regard to the water rights of different riparian states. These theories are:

1. The territorial sovereignty theory.
2. Natural water flow theory.
3. The equitable apportionment theory.
4. The community of interest theory.

The territorial sovereignty theory is also known as the Harmon doctrine because it was put forward by the US Attorney General Harmon in 1896 in connection with the controversy between the United States and Mexico over the use of the waters of the river Rio Grande. This theory holds that riparian states have exclusive or sovereign rights over the waters flowing through their territory.

They may use this water any way they like irrespective of the effect of their usage on other riparian states.

The Harmon doctrine has never completely held sway because it is in total violation of the concepts of justice. Even the countries asserting the doctrine have yielded rights to the lower riparian owners either on account of international comity or other reasons. Though the United States may have asserted the doctrine, in arriving at a settlement with the other riparian state or states it has conceded some rights on the ground of good neighbourly policy. Thus in a treaty of 1906 between the United States and Mexico over the Rio Grande river, though the United States affirmed the Harmon doctrine, yet 'in terms of international comity they were willing to provide Mexico with water equivalent to that which she had used before the diversions took place.' Again a treaty between the two countries in 1944 provides that Mexico shall have the right to the maximum specified quantity of water of river Colorado flowing through the two countries. Similarly, though India has taken the position that as an upper riparian owner it has absolute supremacy over the Indus river flowing from India to Pakistan and its tributaries originating in India, it has conceded certain rights to the latter.

The natural water flow theory is also known as the territorial integrity theory. Since a river is a part of the territory of the state under this theory every lower riparian owner is entitled to the natural flow of the river unhampered by the upper riparian owners, otherwise it results in violation of its territorial sovereignty. In other words, the upper riparian owner must allow the water to flow in its natural course to the lower riparian owner in its ordinary channel though, of course, the former can make reasonable use of the water while it was in his territory. This principle has been drawn from the British cases dealing with private property rights in water in a unitary state. This position was also asserted by Egypt as the lower riparian owner against Sudan with regard to the use of Nile water in 1925. However. the Nile Waters Commission rejected the Egyptian position that it had absolute right to the natural flow of the waters. But in 1929 in an agreement embodied in an exchange of notes between Egypt and Great Britain representing Sudan, Britain conceded to Egypt the right of veto on the utilisation of water by the upper riparians. It has, until recently, been felt that the natural integrity doctrine is obstructionist in nature as it denies the benefits arising out of modern technological uses of an international river. Legal thinking on water rights and water conflicts has so far rejected the natural flow theory. However, the emergence of ecological thinking shows that water projects have high ecological and social costs, and some form of the natural integrity doctrine will need to re-emerge to resolve water conflicts in an ecological era.

The equitable utilisation and community of interest theories are closely interrelated. In international law the equitable utilisation of an international river by different states is gaining acceptance. Recent Helsinki Rules have adopted this theory as the basis of international law with regard to the sharing of waters of an international river by different riparian states. The idea of equitable utilisation is the sharing of waters of an international river by various states on an equitable basis. What is equitable distribution is, however, a difficult question.

The equitable apportionment formula used to resolve inter-state conflicts does not lend itself to precise articulation or rules. It is difficult to evolve principles for determining the equitable share of each riparian state which may apply in all cases or situations. The underlying postulate of equitable apportionment is equitability and not equality. The idea is the maximum benefit accruing to all the riparian states of the river, keeping in view the economic and social needs of the different riparian states. To arrive at a proper or a just balance is not an easy task. The problems of each state and river are unique and a solution in one case may not be feasible for adoption in another. The working out of an equitable share of each basin state requires an analysis of complex technical and economic data and the judicious balancing of conflicting claims of, and uses of the river by different riparian states. The problem is further complicated by the fact that the diverse uses of the river by the different states is not simultaneous. Depending upon the needs and the economic development of a state these uses are at different points of time. How far can an existing use by a riparian state be disturbed for providing a more beneficial and equitable use in contemplation of another riparian state is not an easy matter to decide. In spite of the difficulties inherent in the problem, broad guidelines and certain fundamental principles have been suggested.

The first component of the equitable formula is that the use which is to be protected must be beneficial to the state. Thus the

Helsinki Rules state, 'Each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin. explaining the terms, 'beneficial uses', the comment on the article says that 'it must be economically or socially valuable, as opposed, for example, to a diversion of waters by one state merely for the purposes of harassing another'. Further, 'A "beneficial use" need not be the most productive use to which the water may be put, nor need it utilise the most efficient methods known in order to avoid waste and insure maximum utilisation.

During the period of the technological euphoria of large dams, dams and river diversions were assumed to lead to undiluted benefits. However, as we enter a period of ecological restraint based on experiences of upstream and downstream destruction. the principle of equitable apportionment needs to be radically altered to preserve the integrity of river basins and minimise conflicts over water. Concepts of water rights as used currently are concepts of the rights of a state to control or consume water through large water projects. Equity has been defined within this narrow framework, in which what is essentially protected is the right to 'develop' a river and dam and divert its waters. Rules on water use have been framed to protect the rights of states to build dams. This is clearly stated in the Krishna Tribunal which recommended the establishment of the Krishna Valley Authority. The Tribunal states: 'It shall be the duty of the Krishna Valley Authority to ensure that the waters of the river Krishna are stored. appropriated and used to the extent and in the manner provided'

The Krishna Valley Authority was not created to conserve and protect Krishna river. It was modelled on the lines of the Tennessee Valley Authority, to engage in integrated planning at the level of the entire basin. As Reisner has claimed, 'The creation of the Tennessee Valley Authority marked the first time a major river system was "viewed whole" even if the natural river disappeared as a result.

The framework of scientific knowledge and social justice that is currently in use for resolving water conflicts is based on the assumption that a river is wasted if it is not dammed. The concept of 'protective uses' is largely a concept to protect dams and water projects.

Article VIII(I) of the Helsinki Rules provides that 'An existing reasonable use may continue in operation unless the factors justi fying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use.'

As noted by commentators, the rule embodied in this Article gives some weight to the existing use but it is not conclusive. If the existing use is held to be conclusive then, 'it freezes river development according to the requirements of the earlier user. Indeed, it is conceivable that, if a state moves quickly enough, it could appropriate all of the waters of a basin to the complete exclusion of its co-basin states.

But, if no weight is given to the existing uses, it would inhibit river development, as no state would like to invest huge sums of money in the construction of dams and other works if it has no reasonable assurance of the continuance of its use of the waters. The Helsinki Rule as embodied in Article VIII represents a compromise between the conflicting forces involved in dam building.

Neither international law nor national law related to water rights has evolved to respond to the ecological and political challenges posed by water conflicts that are emerging because people's survival needs and nature's sustenance needs have been ignored. No legal document mentions the most basic law related to water-the natural law of the water cycle. Protection is limited to man-made concrete structures, and from this limited concept of water rights emerges the competitive scramble for each i region and state attempting to outdo the other in planning water projects as a means of establishing their rights to water. Water conflicts thus grow exponentially with large water projects, in spite of the establishment of legal frameworks to resolve these conflicts.

In India the position has been well recognised that no state can be given an entirely free hand in respect of a common source of water such as an inter-state river. Inter-state rivers are for the general welfare of all the states through which they flow irrespective of political boundaries. The Harmon doctrine has never held sway in India. Under the Government of India Act, 1935, even though water supplies, irrigation canals, drainage and embankments, etc. were included in the Provincial Legislate List, Sections 130 to 132 of the Act imposed certain limitations on the provinces in the use of inter-state river waters. If the action of one province affected or was likely to affect prejudicially the interest of another province, the latter could complain to the Govemor-General under Section 131). Thereupon, after appointing a commission of investigation, the Governor-General or (in certain circumstances) His Majesty in Council could make such orders as he considered proper in the matter and such orders were binding on the concerned province.

Under the Constitution of India also, a co-riparian state is not free to develop an inter-state river regardless of the harm to other co riparian states. This is evident from the fact that the Constitution in Article 262 has empowered Parliament to provide 'for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley.' There would have been no necessity for such a provision if the Harmon doctrine were the governing law. Though Parliament has provided the adjudicatory machinery in the InterState Water Disputes Act, the statute is silent as to the principles to be followed in the settlement of inter-state water disputes. The principle adopted in the resolution of inter-state water disputes in the pre-independent and post-independent period in India, has been the equitable allocation of waters among the states to ensure 'each unit getting a fair share of the water of the common river'.

The fact that there is an internationally accepted principle aimed at a just resolution of river conflicts between countries and between states does not, by itself, ensure justice. First, each basin is so distinct that the most sustainable and just use of water will be diverse, not monolithic. Second, given this ecological diversity, the basic principle of equitable utilisation emerges as vague. This principle is no more than a set of recommendations from a nongovernmental scientific organisation. First, the principle treats water like other resources, static and fixed, to be cut up and divided. But in river waters, what is distributed is a flow-and because water is a flow, not a stock, its distribution has non-heal impacts. The distribution of benefits and losses to regions involved in an upstream-downstream relation, or in non-riparian states deriving water use benefits, are changing over time, as are the implications of the equitable sharing concept. Technological changes which contribute to river water diversions also change the mutual situation and have implications for an equitable sharing concept.

The issue is not one of maintaining a balance between territorial sovereignty and riparian rights. Ecological conflicts over river waters are indicative of the limits within which water re-distribution can take place. While natural flow is not an absolute criterion, conserving rights distributed ecologically is a criterion. Water projects have severe ecological impacts and costs are unequally distributed between states and between social groups. The ecological perspective also helps correct the view that water conserved is water 'wasted'. Ecologically, unexploited water can be critical in maintaining essential ecological processes such as recharge of groundwater, and maintaining the sea water-flesh water balance in the delta.

The ecological links between surface water and groundwater, and between fresh water and the life in the ocean have been totally overlooked in the engineering approach to resource management, which in turn informs legal approaches to rights and entitlements to vital natural resources. Thus, the Krishna Tribunal disassociated the issue of groundwater use in the Krishna basin from the utilisation of the Krishna waters. It stated that the 'use of the underground water by any state shall not be reckoned as use of the water of the river Krishna', and gave the states full freedom to use groundwater. By excluding control over groundwater utilisation, the Krishna Tribunal allowed privatisation and over-exploitation of water resources in the basin, thus opening the way for the emergence of new conflicts, which could have been controlled had water resources been viewed in their totality. Groundwater use was thus left totally uncontrolled leading to acute groundwater depletion in almost all parts of the basin further aggravating water scarcity and drought proneness, and creating new demands for river diversions and inter-basin transfers.

In the Rayalseema region, over-exploitation of groundwater and the collapse of the indigenous system of irrigation has given rise to new demands for the inter-basin diversion of the Krishna basin waters through the Telugu Ganga project. Surface and groundwater cannot be artificially separated because surface water flows recharge groundwater, and groundwater depletion affects the status of surface waters. The problem of waterlogging emerges from having ignored the former link whereas the problem of drought and desertification is due to the neglect of the latter.

Inter-state river conflicts such as those over the sharing of Krishna waters are proving to be beyond solution because a concept of equity that is ecologically sound and socially just has yet to emerge in the utilisation of river waters. In the absence of ecological equity criteria, the diversion of river waters by one state is seen as violation of the rights to water of other states. Water is viewed mechanistically, as existing in a fixed quantity, to be cut up and divided, independent of its functions in nature's economy and the survival economy. The ecological disruption of water flows by river valley projects is the source of conflicts over river waters, but is not perceived as such.

Disputes over dams are struggles between different communities and regions about how much water one region can take from another, or how much environmental damage one group must bear in order to meet the irrigation or energy needs of another group. So far struggles against dams in India have largely originated from the problem of displacement of millions of people who have been rendered homeless overnight by decisions taken by the state. These struggles have remained fights of the displaced citizens against the ruthless state machinery. On the other hand, struggles against the ecological impacts of massive irrigation systems such as waterlogging, and the diseconomies they generate, are often only limited to challenging the distribution end of large water projects, not the large-scale storage systems. Finally, conflicts over water rights have predominantly remained within the domain of states and have taken the form of inter-state conflicts at the regional level. A coherent framework for evolving a just and sustainable policy for water use can only be evolved when there is a feedback between struggles against dams, struggles against the ecological hazards of intensive irrigation and struggles for water rights. The mediating element for this feedback is the ecological perspective which perceives water in all its interconnectedness in the river basin. Such a perspective allows an ecological audit of water projects, bringing out the hidden costs where benefits were assumed, and indicating alternative patterns for resource utilisation which protect the survival base of the people and maintain nature's economy of the essential ecological processes.

The resolution of water conflicts is impossible without two major shifts in the technological and legal approaches to rivers. The first is a shift from the engineering to the ecological approach to water. Such a shift would make it possible to perceive that river water entering the sea is nor a 'waste' but essential to the integrity of the river, and river water being diverted to create waterlogged deserts out of fertile soils through intensive irrigation is a waste.

The second shift is to perceive water rights not merely as rights of states to control water but also as rights of citizens and communities to draw sustenance from water, and to socially control its use within the limits of sustainability and renewability.

The foundations for an ecological and democratic approach to water are already being laid in local initiatives which are searching for alternatives to large-scale, state managed, ecologically and politically disruptive water projects.

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