Sharing Himalayan Glacial Meltwater: The Role of Territorial Sovereignty
Thorson, Erica J., Duke Journal of Comparative & International Law
Mountain glaciers around the world are melting. (1) The Intergovernmental Panel on Climate Change and the World Glacier Monitoring Service both predict that the Andean and Himalayan glaciers, sources of freshwater for millions of people, will retreat irreversibly in the coming decades, forever releasing their savings accounts of freshwater. (2) Glacial retreat portends significant global justice consequences: seventy-seven percent of the world's freshwater resources is stored in ice--either in the polar ice caps or mountain glaciers. (3) While the polar ice caps store most of the water, mountain glaciers nonetheless bank a portion that is significant, not just in quantity but also in accessibility. In light of the extreme freshwater shortages experts predict, glacial water is of extraordinary value and waste of this resource is to humanity's peril. (4)
A close examination of the Ganges-Brahmaputra River Basin highlights starkly the importance of glacial meltwater to the Himalayan region; it also underscores the complex security concerns and water justice issues so pervasive in Himalayan region politics. (5) The Ganges-Brahmaputra River Basin significantly depends on glaciers as a primary source of freshwater, including slightly over 11,000 glaciers resting in Nepal, India, the Tibetan plateau, and Bhutan. The vast majority of these glaciers rest in Chinese territory. (6) These glaciers supply water for Nepal, India, China, Bhutan, and Bangladesh. (7) Aside from feeding the many rivers and lakes of the Ganges-Brahmaputra River Basin with year-round fresh water, the 11,000 glaciers comprise 2,571.8 cubic kilometers of ice or 617 cubic miles of frozen water--water that scientists predict the glaciers will soon release. (8)
Although artificially inducing the retreat of glaciers may not be ecologically or climatologically wise, the Himalayan region nonetheless has an interest in storing glacial meltwater that represents the amount of glacial melt in excess of historic levels. (9) First, the region is heavily reliant on the Himalayan rivers for much of its freshwater needs, including sanitation, drinking water, agricultural and industrial development, and hydroelectricity. (10) Thus, diversion and storage of the water is a rational choice--it would allow the region to maximize the beneficial uses of the water. (11) Second, diversion and storage would forestall the potentially catastrophic consequences of glacial melt, such as glacial lake outburst floods and sea-level rise, which threaten many low-lying States--in particular Bangladesh, a country that depends on Himalayan glacial meltwater as a main freshwater source. (12)
The States most well-positioned, inclined, and capable of water storage projects of such tremendous capacity are likely to be the wealthier upper riparian States. (13) This raises a number of interesting and important questions: Does the water, and all rights to benefit from the water, belong to the upper riparian States where the glaciers currently rest? Or, because the glacial meltwater would otherwise run its course through an interconnected, transboundary water system, do lower riparian States also have rights vis-a-vis that glacial meltwater? Unless international law, either customary or treaty, provides downstream or otherwise interconnected States with rights vis-a-vis glacial meltwater and, conversely, imposes duties on upper riparian States, downstream States are at the mercy of seasonal rivers, lakes, and aquifers.
This brief article begins to explore the theoretical underpinnings of the law of non-navigational uses of international watercourses in light of the imminent significance of glaciers as controversial international natural resources. This article critically assesses the scope of the law, specifically whether the Himalayan glaciers that feed the major river basins of the region are included within the scope of the law. Specific substantive rights and duties aside, consideration of whether the law is adequate in scope is germane to understanding whether the law of international watercourses is a good framework under which States should deliberate and cooperate regarding glacial meltwater issues. …