Law relating to water: National and International Perspective

Introduction: importance of water

Water is the most important element for human life. It is becoming an increasingly scarce
commodity worldwide. There are vast water-stressed areas where people survive with little or
no water. It is part of the right to life and human rights as enshrined in Article 21 of the
constitution of India. The Resolution of UNO in 1977 to which India is a signatory, during
the United Nation Water Conference resolved unanimously, inter-alia, as under:
“All people, whatever their stage of development and their social and economic conditions,
have the right to have access to drinking water in quantum and of a quality equal to their
basic needs.”1
The United Nations also emphasized the importance of purity of water when it proclaimed on
10th November, 1980 “International Drinking Water Supply and Sanitation Decade,” India is
also signatory to this Declaration. Thus, the right to access to drinking water is fundamental
to life and there is a duty on the state under Art. 21 to provide clean water to its citizens.2
Thus, water is an essential element for life – including human life – on earth and as a result is
a core concern in law. From a legal perspective, the UNDP rightly emphasises the importance
of the human right dimension of water. 3 Yet, in practice, water law is made up of a number of
elements comprising a human right dimension, as well as economic, environmental or
agricultural aspects. In particular, historically, one of the central concerns of water law has
been the development of principles concerning access to and control over water.
Drinking water is directly essential for human life. Water is also indirectly essential, for
instance, as an indispensable input in agriculture. Yet, despite the central role that water has
always played in sustaining life, human lives and human economies, the development of
formal water law has been relatively slow and often patchy. At the domestic level, colonial
legislation first focused on the regulation of water for economic reasons, for instance, through
the development of legislation concerning irrigation and navigation. Over the past few
decades, increasing water pollution and decreasing per capita availability have led to the
development of other measures such as water quality regulation and an emphasis on water
delivery, particularly in cities, as well as environment-related measures. Yet, water law
remains largely sectoral to-date. At the international level, water regulation first focused
mostly on navigation in international watercourses. It has progressively evolved to
encompass issues concerning the sharing of international waters. International water law has,
however, not yet reached the stage where it provides an overall regime for the regulation of
water uses.
In India, water law is made of different components. It includes international treaties, federal
and state acts. It also includes a number of less formal arrangements, including water and
water-related policies as well as customary rules and regulations. This working paper maps
out the relevant legal framework concerning water in India. The first section delineates water
1
Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 at 767. See also Hinch Lal Tiwari v. Kamala
Devi, (2002) 6 SCC 496.
2
See also Hinch Lal Tiwari v. Kamala Devi, (2002) 6 SCC 496.
3
United Nations Development Programme, Human Development Report 2006 – Beyond Scarcity: Power,
Poverty and the Global Water Crisis 1 (New York: UNDP, 2006).
law as it evolved until recently. The second section then examines proposed and ongoing
water law reforms that are in the process of completely redrawing India’s water legal
framework.

International perspective
International law of the sea is that part of public international law that regulates the rights and
obligations of States and other subjects of international law, regarding the use and utilization of the
seas in peace time.4 It is distinguished from the private maritime law that regulates the rights and
obligations of private persons with regard to maritime matters, e.g., the carriage of goods and
maritime insurance.5 Law of the sea was developed as part of the law of nations in the 17th century
with the emergence of the modern national State system. 6 The seas of the world have historically
played two key roles: firstly, as a means of communication, and secondly, as an immense reservoir of
both living and non-living natural resources. Both of these roles have encouraged the development
of legal rules.7 No branch of international law has undergone more radical changes during the past
four decades than has the law of the sea and maritime highways. 8 Law of the sea is concerned with
the public order at sea and much of this law is codified in the UN Convention on the Law of the Sea
(UNCLOS).9 In the international jurisdictions disputes may frequently be arisen among the
neighbouring coastal States regarding the delimitation of maritime boundary, exploitation of
minerals or natural resources, commission of any crime in the territorial boundary of another State,
etc. These disputes are generally resolved by the international courts or tribunals on the basis of
complaints filed by the parties concerned following the rules of international law of the sea or
following the precedents as a pivotal source of international law. This study, however, is concerned
with those rules of international law usually referred to as “the law of the sea” and is intended as a
starting point for research on the law of the sea.

Helinski water convention

The Convention was adopted by the Senior Advisers to the Economic Commission for
Europe Governments on Environmental and Water Problems at their Resumed Fifth Session
held at Helsinki from 17 to 18 March 1992. The Convention was opened for signature at
Helsinki from 17 to 18 March 1992 and was open for signature at United Nations
Headquarters in New York until 18 September 1992.10
Some of the UNECE's water related problems are of water quantity and water quality,
high water stress and overexploitation of water resources, increasing droughts and floods,
contaminated water resulting in water-related diseases, etc. These issues are even harder to
solve due to transboundary nature of watersources UNECE region. More than 150 major
rivers and 50 large lakes are either shared or are situated along the borders of two or more
countries.11

4
Brown, E. D. (1994). The International Law of the Sea (vol. 2). Oxford University Press.
5
Churchill, R., & Lowe, A. V. (1999). The Law of the Sea (3rd ed.). Huntington, NY: Juris Publishing, Inc
6
O’Connell, D. P. (1982). The International Law of the Sea (Vol. 2). Oxford: Oxford University Press.
7
Shaw, M. N. (1997). International Law. Cambridge: Cambridge University Press.
8
Starke, J. G. (1994). AnIntroduction to International Law (10th ed.). New Delhi: Aditya Books.
9
Churchill, R. R. (2013). Law of the Sea. http://www.global.britannica.com
10
http://www.unece.org/env/water.html
11
http://www.unece.org/env/water/text/text.html
The Water Convention approaches its issues in a holistic way, equally emphasizing the
importance of ecosystems, human societies and economies,12 and stressing the integrated
water management instead the previously used focus on specific localized problems.
In 2003, the Water Convention was amended, allowing countries outside the UNECE region
to join the Convention, and thus benefit from its legal framework and experience; the
amendment entered into force in 2013. This is especially beneficial for countries bordering
UNECE region.13

London convention on marine dumping

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter 1972, commonly called the "London Convention" or "LC '72" and also abbreviated
as Marine Dumping, is an agreement to control pollution of the sea by dumping and to
encourage regional agreements supplementary to the Convention. It covers the
deliberate disposal at sea of wastes or other matter from vessels, aircraft, and platforms. 14 It
does not cover discharges from land-based sources such as pipes and outfalls, wastes
generated incidental to normal operation of vessels, or placement of materials for purposes
other than mere disposal, providing such disposal is not contrary to aims of the Convention. It
entered into force in 1975. As of September 2016, there were 89 Parties to the Convention.15
  
-     
  () -
<UN>

this background, this article will address the responses of these four contract-
ing parties in East Asia to the implementation of the London Convention, and
analyze and assess each state’s relevant laws and regulations with particular
reference to China’s practice. In addition, it will focus on new challenges to the
London Convention, such as ofshore carbon storage.
2 London Convention and London Protocol
The objective of the London Convention is to promote the efective control of
all sources of marine pollution and to take all practicable steps to prevent pol-
lution of the sea by dumping of wastes and other matter. It adopts a “permit-
ted unless prohibited” approach to ban dumping substances listed in Annexes
  and    , and all other substances outside the lists can be dumped at sea.
Under the Convention, “dumping” means “any deliberate disposal at sea of
wastes or other matter either from vessels, aircraft, platforms or other man-
made structures at sea, or of such structures themselves.” However, this de-
nition does not include dumping of wastes either “from normal operations
of vessels, aircraft, platforms or other man-made structures at sea and their
equipment” or “for a purpose other than the mere disposal thereof”. “Wastes
and other matter” are broadly dened as “material and substance of any kind,
form or description”.
12
 "The Convention on the Protection and Use of Transboundary Watercourses and International
Lakes"  (PDF). UNECE.
13
http://www.unece.org/fileadmin/DAM/env/documents/2004/wat/ece.mp.wat.14.e.pdf
14
"Status of Conventions". International Maritime Organization.
15
 "London Convention".  International Maritime Organization.
The London Protocol is an updated and more rigorous version of the Conven-
tion and is intended to eventually replace the Convention for those states who
are parties to the Protocol. The Protocol is regarded as a signicant milestone
for the protection of the marine environment since it adopts an “approved
listing” approach to ban dumping substances i.e. a substance may only be
 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Mat-
ter, Article .
 Chiara Armeni, “Legal Development for Carbon Capture and Storage under
International
and Regional Marine Legislation”, in lan Havercroft et al. (eds.), Carbon Capture and Stor-
age: Emerging Legal and Regulatory Issues (Portland: Hart Publishing, 2011): 146.
 Supra note 9, Article    (1) (a) (i)(ii).
 Id, Article    (1) (b) (i).
 Id, Article    (1) (b) (ii).
 Id, Article    (4).
 Tim Dixon, Sean T. McCoy, and Ian Havercroft, “Legal and Regulatory Developments
on
   ”, International Journal of Greenhouse Gas Control 40 (2015): 433.
The objective of the London Convention is to promote the effective control of all sources of
marine pollution and to take all practicable steps to prevent pollution of the sea by dumping
of wastes and other matter.16 It adopts a “permitted unless prohibited” approach to ban
dumping substances listed in Annexes ii and iii, and all other substances outside the lists can
be dumped at sea.17Under the Convention, “dumping” means “any deliberate disposal at sea
of wastes or other matter either from vessels, aircraft, platforms or other manmade structures
at sea, or of such structures themselves.”18However, this definition does not include dumping
of wastes either “from normal operations of vessels, aircraft, platforms or other man-made
structures at sea and their equipment” 19 or “for a purpose other than the mere disposal
thereof”.20 “Wastes and other matter” are broadly defined as “material and substance of any
kind, form or description”.21 The London Protocol is an updated and more rigorous version of
the Convention and is intended to eventually replace the Convention for those states who are
parties to the Protocol.22 The Protocol is regarded as a significant milestone for the protection
of the marine environment since it adopts an “approved listing” approach to ban dumping
substances i.e. a substance may only be dumped if it is included in Annex i. 23The wastes
contained in the approved list include: dredged material; sewage sludge; fish wastes; vessels
and platforms; inert, inorganic geological material (e.g., mining wastes); organic material of
natural origin; and bulky items primarily comprising iron, steel and concrete.24
The Protocol redefines the term “dumping” as “any deliberate disposal into the sea of wastes
or other matter from/of vessels, aircraft, platforms or other manmade structures at sea; or any
16
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, Article i
17
Chiara Armeni, “Legal Development for Carbon Capture and Storage under International and Regional
Marine Legislation”, in lan Havercroft et al. (eds.), Carbon Capture and Storage: Emerging Legal and Regulatory
Issues (Portland: Hart Publishing, 2011): 146.
18
Supra note 10, Article iii (1) (a) (i)(ii)
19
Id, Article iii (1) (b) (i).
20
Id, Article iii (1) (b) (ii).
21
Id, Article iii (4).
22
Tim Dixon, Sean T. McCoy, and Ian Havercroft, “Legal and Regulatory Developments on ccs”, International
Journal of Greenhouse Gas Control 40 (2015): 433.
23
Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matte,
Article 4.
24
Id, Annex i.
storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft,
platforms or other manmade structures at sea; and any abandonment or toppling at site of
platforms or other manmade structures at sea, for the sole purpose of deliberate disposal.” 25
However, “dumping” does not include the incidental disposal, or derived from the normal
operations of manmade structures, e.g., vessels, aircraft, platforms and their equipment, or
placement of matter for a purpose other than the mere disposal thereof. In addition, if the
abandonment in the sea of e.g., cables, pipelines and marine research devices placed not
merely for a purpose of disposal thereof, then this scenario is excluded from “dumping”. 26In
comparison, this definition has enlarged and stated in more detail the original definition
provided by the London Convention.

   -

 

<UN>

this background, this
article will address the
responses of these four
contract-
ing parties in East Asia to
the implementation of the
London Convention, and
25
Id, Article 1 (4).
26
Id.
analyze and assess each
state’s relevant laws and
regulations with particular
reference to China’s
practice. In addition, it will
focus on new challenges to
the
London Convention, such
as ofshore carbon
storage.
2 London Convention and
London Protocol
The objective of the
London Convention is to
promote the efective
control of
all sources of marine
pollution and to take all
practicable steps to
prevent pol-
lution of the sea by
dumping of wastes and
other matter. It adopts a
“permit-
ted unless prohibited”
approach to ban dumping
substances listed in
Annexes
 and , and all other
substances outside the
lists can be dumped at
sea.
Under the Convention,
“dumping” means “any
deliberate disposal at sea
of
wastes or other matter
either from vessels,
aircraft, platforms or other
man-
made structures at sea, or
of such structures
themselves.” However,
this de-
nition does not include
dumping of wastes either
“from normal operations
of vessels, aircraft,
platforms or other man-
made structures at sea
and their
equipment” or “for a
purpose other than the
mere disposal
thereof”. “Wastes
and other matter” are
broadly dened as
“material and substance of
any kind,
form or description”.
The London Protocol is an
updated and more
rigorous version of the
Conven-
tion and is intended to
eventually replace the
Convention for those
states who
are parties to the
Protocol. The Protocol
is regarded as a
signicant milestone
for the protection of the
marine environment since
it adopts an “approved
listing” approach to ban
dumping substances i.e. a
substance may only be
 Convention on the Prevention
of Marine Pollution by Dumping
of Wastes and other Mat-
ter, Article .
 Chiara Armeni, “Legal
Development for Carbon Capture
and Storage under International
and Regional Marine
Legislation”, in lan Havercroft et
al. (eds.), Carbon Capture and
Stor-
age: Emerging Legal and
Regulatory Issues (Portland: Hart
Publishing, 2011): 146.
 Supra note 9, Article 
(1) (a) (i)(ii).
 Id, Article  (1) (b) (i).
 Id, Article  (1) (b) (ii).
 Id, Article  (4).
 Tim Dixon, Sean T. McCoy,
and Ian Havercroft, “Legal and
Regulatory Developments on
”, International Journal of
Greenhouse Gas Control 40
(2015): 43
UN law of the seas
The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and
development of contemporary international law governing the sea in time of peace. 27 The
UNCLOS, also called the Law of the Sea Convention, is a global agreement that resulted
from the third UN Conference on the Law of the Sea (UNCLOS III), which took place
between 1973 and 1982. This treaty is considered to be the “constitution of the oceans” and
represents the result of an unprecedented, and so far never replicated, effort at codification
and progressive development of international law.28Maritime jurisdictions are now governed
mainly by the 1982 UN Convention on the Law of the Sea. The comprehensive 1982
Convention that replaced the 1958 four conventions on the law of the sea consists of 320
articles and 9 annexure was concluded in 1982. The UNCLOS is intended to govern the use
of oceans for fishing, shipping, exploration, navigating and mining and it is the most
complete treaty in public international law that covers a range of law of the sea topics, e.g.
delimitation of maritime boundaries, maritime zones, marine environment protection, marine
27
Abdurrahim, W. (2012). Subjects of Public International Law. My International Law Studies. (In English)
28
Treves, T. (2013). UN Convention on the Law of the Sea Montego Bay. UN Office of the Legal Affairs
scientific research, piracy and so on. This Convention represents the most significant
development in the whole history of the rules of international law regarding the high seas. 29
The greater part of the convention, containing the more significant rules therein enunciated
much the previous law was thereby changed; appear now to command the general consensus
of the world community.
A careful list of the main substantive provisions of the Convention, focusing on those,
introduces changes or new concepts in the traditional law of the sea would seem to include
the aspects30: a) The maximum width of the territorial sea is fixed at 12 miles and that of the
contiguous zone at 24 miles; b) A “transit passage” regime for straits used for international
navigation is established; c) States consisting of archipelagos, provided certain conditions are
satisfied, can be considered as “archipelagic States”, the outermost islands being connected
by “archipelagic baselines” so that the waters inside these lines are archipelagic waters; d) A
200-mile exclusive economic zone including the seabed and the water column, may be
established by coastal States in which such States exercise sovereign rights and jurisdiction
on all resource-related activities; e) Other States enjoy in the exclusive economic zone high
seas freedoms of navigation, over flight, laying of cables and pipelines and other
internationally lawful uses of the sea connected with these freedoms; f) A rule of mutual “due
regard” applies to ensure compatibility between the exercise of the rights of the coastal states
and of those of other states in the exclusive economic zone; g) The concept of the continental
shelf has been confirmed, though with newly defined external limits; h) The International
Seabed Authority being the “machinery” entrusted with the supervision and regulation of
exploration and exploitation of the resources; i) A series of very detailed provisions deal with
the protection of the marine environment setting out general principles and rules about
competence for law-making and enforcement as well as on safeguards; j) Detailed provisions
concerning marine scientific research, based on the principle of consent of the coastal State,
consent which should be the norm for pure research and discretionary for resource-oriented
research; k) The ocean bottom beyond national jurisdiction is proclaimed to be the “Common
Heritage of the Mankind”.31

National perspective
Natural resources (NR) are essential for the survival of all forms of life on planet earth. The
unsustainable use of these resources in all forms (due to increase in human population and
consequential increase in demand) has intensified the competition for multiple uses of NR
leading to limitless depletion. The ever-expanding rift between availability and use has
resulted in a wide spread threat to the ecosystem. Water policies in the past two decades have
focused more on the expansion and physical availability of water without regard to
sustainability. This approach has led to poor management of institutional structures and water
resources. Current practices in water management may not be enough to meet the water
challenges of the next century. There is a need to reexamine these institutional structures.
Water rights in India are closely linked to property rights in land. At an aggregate level, the
29
Starke, J. G. (1994). AnIntroduction to International Law (10th ed.). New Delhi: Aditya Books.
30
Supra 22.
31
Khan, F. R. (2006). International Law of the Sea: Bangladesh Perspective. The Daily Star.
implication of this is ground water over exploitation. Agriculturally important states in India
are witnessing phenomenal fall in water table.32 Traditional water harvesting has taken a back
seat. Rural drinking water is an issue. Panchayats have deprived local people of control of
traditionally managed tanks and other common pool resources (CPR’s).33

Water Act 1974

‘Water’ being a ‘state subject’, the Parliament can exercise the power to legislate on “water”
only under Articles 249 and 252 of the Constitution of India. In pursuance of Art.252 (1) of
the Constitution, resolutions were passed by all the Houses of the Legislatures of the States of
Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala,
Madhya Pradesh, Rajasthan, Tripura and West-Bengal and Union Territories to the effect that
the matters relating to prevention and control of water pollution should be regulated by the
Parliament by Law. Accordingly, the Parliament enacted the Water (Prevention and Control
of Pollution) Act, 1974. The Water Act represents one of the India’s first attempts to deal
with an environmental issue comprehensively. The Water Act was amended in 1978 and
again amended in 1988 to conform to the provisions of the Environment (Protection) Act,
1986.

The purpose of this act is

“to provide for the
prevention and control of
water pollution and
the maintenance or
restoring wholesomeness
of water for the
establishment, with a view
to
32
TERI Information Monitor on Environmental Science, Vol.2, no.1: relied on Ministry of Water Resources
1994, Govt. of India.
33
India’s water crises: Avenues for Policy and Institutional Reform, TERI Vol2.
carrying out the purpose
of aforesaid of Boards
for the prevention and
control of water
pollution, for conferring
on and assigning to
such Boards powers and
functions relating
thereto and for matters
connected therewith”
This is the Act that
established the Central
and
State Boards and also the
authority and power
to constitute as many
committees as it feels
essential to carry out
specific functions for it.
The Act specifically
prohibits “any poisonous,
noxious or polluting
matter” into any stream or
well. Consent from the
State Board is required
for any type of new
discharge into any new
stream or well. This also
includes consent for
“temperature” discharges
as done by cooling
tower users. Under these
rules, “effluent
standards to be
complied with by
persons
while causing discharge of
sewage or sullage or
both” have been specified.
Standards for small
scale industri e s have
been s pecifie d
separately. Penalties for
non-compliance with
the permit or polluting
are also given. These
penalties can also be
imposed for “obstructing
any person acting under
the orders or direction
of the Board” or for
“damages to any work or
property of the Board.”
The purpose of this act is “to provide for the prevention and control of water pollution and
the maintenance or restoring wholesomeness of water for the establishment, with a view to
carrying out the purpose of aforesaid of Boards for the prevention and control of water
pollution, for conferring on and assigning to such Boards powers and functions relating
thereto and for matters connected therewith” This is the Act that established the Central and
State Boards and also the authority and power to constitute as many committees as it feels
essential to carry out specific functions for it. The Act specifically prohibits “any poisonous,
noxious or polluting matter” into any stream or well. Consent from the State Board is
required for any type of new discharge into any new stream or well. This also includes
consent for “temperature” discharges as done by cooling tower users. Under these rules,
“effluent standards to be complied with by persons while causing discharge of sewage or
sullage or both” have been specified. Standards for small scale industries have been specified
separately. Penalties for non-compliance with the permit or polluting are also given. These
penalties can also be imposed for “obstructing any person acting under the orders or direction
of the Board” or for “damages to any work or property of the Board.”34

Religious purposes
One of these, the Indian god Narayana, or “he who lives on the water” is one of the
manifestations of Vishnu. According to the Indians, the creation of the Universe is
perpetually reabsorbed by Narayana, and it is from him that all things are born again. The
most important sacred river in India is the Ganges, and Hindus believe that their life is
incomplete if they don’t bathe at least once in its purifying waters. It is also believed that by
bathing in this sacred river one can be pardoned for sins and attain salvation more easily.
Indeed, for Hindus, the waters of the Ganges can heal sickness and cleanse the soul of all its
sins. Long journeys are carried out to throw the ashes of cremated family members in the
waters, because they believe the soul will rise up from there to heaven. It is also held that the
soul can go to heaven if you drink water of the Ganges, and, for this reason most Hindu
families always keep a vial of its water at home. It is therefore not surprising that many
sacred Hindu sites, such as Hardwar and Varanasi, are found along the banks of the Ganges.35
The Kumbh Mela is a 42-day long pilgrim festival for Hindus held every 12 years in
Allahabad, and although the exact number is uncertain, in 2001 it was estimated that 50-70
million people joined the confluence of Ganga, Yamuna and the mythical, subterranean
Saraswati River. On January 24 2001, which was the most auspicious day for performing the
ritual baths, some 20-25 million people cleansed themselves of committed sins with holy
water from the three rivers. The 2001 Kumbh Mela accounted for the largest congregation of
34
Murty, MN and Kumar S. 2002, 'Measuring Cost of Environmentally Sustainable Industrial Development in
India: A Distance Function Approach', Environment and Development Economics, Vol. 7, pp. 467–86.
35
Narayanan, V. (2001). “Water, Wood, and Wisdom: Ecological Perspectives from the Hindu Traditions”, in
Daedalus, 130(4):179–206
human beings ever. They had gathered with one purpose only: to bathe in the confluence of
Ganges, Yamuna, and Saraswati. The holiness of the water in these rivers will then erase sins
and prepare the devotees for death. The water of the joining rivers encapsulates life from the
realms before birth to the cosmic consequences after death. This shows the importance of
religious water in society and cosmos.36

36
Tvedt, T. & Oestigaard, T. in press. Introduction. In Tvedt, T. & Oestigaard, T. (eds). A History of Water.
The world of water. Vol. 3. I.B Tauris.