', "*k. t, 1' 210 97RE Natural Resources rnrum. Vol. 21. No. I. pp. 23 -38. 1997 Pergamon ~t', 1997 United Nalions Published by hlM-'vier Science Lid ['rimed in Great Britain IMI: SO 165-0203(96)00004-9 0165-0203/97 SI7.00+ 0.00 Reducing conflict over the Danube waters: equitable utilization and sustainable development Rhoda Margesson This paper develops the idea that the principle of equitable utilization must be applied in concert with sustainable water use not only in the resolution of specific disputes but in the cooperative management of water resources in general. It illustrates this point with two different cases involving the use of the Danube River. The first is the conflict over the Gabcikovo Nagymaros Dam, which now rests before the International Court of Justice. The author argues that a narrow legal ruling that fails to take into account broader issues of equitable utilization as they relate to sustainable development will not satisfactorily address the long-term questions at slake between the parties. The second involves the situation in the Danube Delta where the potential for conflict exists, but may be minimized through the convention and institutional framework developed to address the environmental degradation and pollution of the Danube River basin, which is based in part on the principle of equitable utilization and the goal of achieving more sustainable water use. The paper provides a brief overview of the geographical features of the Danube River and international water law. It then explores the principle of equitable utilization and sustainable water use in light of the two cases and discusses the implications for the. resolution and management of conflicts involving internationally shared water courses. © 1997 United Nations Key words: Danube River, Danube Delta, equitable utilization, sustainable water use, Gabcikovo- Nagymaros Project, water management, resources disputes, conflict Much of the world's fresh water is available from equitable utilization must be applied in concert with international drainage basins, which make up almost sustainable water use both in the resolution of fifty percent of the earth's land area.1 Because these particular disputes and in defining a broad framework rivers and basins are not typically contained within a for the cooperative management of a river. To single border, the need for collaboration and illustrate this point the author will examine two communication exists in order to meet current needs separate situations. The first is a specific dispute over and to prepare for future use, as well as to manage the Gabcikovo-Nagymaros Project where a narrow competing interests and resources better. Long-term legal ruling that fails to consider broader issues of sustainable development relies on access to and the equitable utilization as they relate to sustainable efficient use of freshwater. Many of the ways in which development will not address the long-term questions rivers are used transcend political and national at stake and may well lead to further disputes between boundaries and affect questions relating to sovereign the parties. The second case is the environmental interests, thereby contributing to tensions which degradation of the Danube Delta, where the potential inevitably arise over shared resources. for disputes exists but may well be minimized by the The current use of the Danube River is a good case in establishment of an institutional and management point. It highlights the fact that the legal principle of framework that is based on the principle of equitable utilization in conjunction with the goal of achieving The author is a Ph.D. candidate at the Fletcher School of Law and more sustainable development. Diplomacy, Tufts University, and at present a member of the staff at the Program on International Conflict Analysis and Resolution In the following discussion, the legal structures in (PICAR), Center for International Affairs, Harvard University, place which govern international rivers in general and Cambridge, MA 02138, U.S.A. the Danube River in particular will be briefly reviewed. 'international rivers flow through or from the boundary between at Then the use of the principle of equitable utilization in least two countries. There are an estimated 214 international rivers light of the two cases mentioned above is explored. in the world today. Some of the largest include the Niger, Nile, Zaire, Amazon, La Plata and Ganges Brahmaputra (Gleick, Finally, the implications raised by these cases for resolving disputes and fostering sustainable water use 1993) LIBRARY IRC PO Box 93190, 2509 AD THE HAGUE J Tel.: +31 70 30 689 80 23 Fax: +31 70 35 899 64 BARCODE: LO: mo 24 Reducing conflict over the Danube waters: R. Margesson are considered. Before beginning this discussion the numerous conflicting upstream and downstream uses. stage will be set with a review of the geographical Moreover, the costs and benefits associated with the characteristics of the Danube River basin. various uses of the Danube are not evenly distributed among the various riparian states and highlight the power imbalances among them.4 There are many The hydropolitical setting national actors with differing agendas, laws and The Danube flows west to east from its source in the resources with which to address their needs. An uneven German Black Forest to its outlet in the Black Sea. emergence of public concern over environmental issues Covering roughly 1770 miles, it is the second longest (and the impact of water use) is compounded by river in Europe (Pringle et al., 1993).2 It is also one of government reluctance to share information and reach the most international, passing through at least nine agreement about scientific data, despite a growing countries:3 Germany, Austria, Slovakia, Hungary, concern about local and transboundary environmental Croatia, Serbia, Bulgaria, Romania, and Ukraine. In consequences. addition, small tributaries originating in four countries — Albania, Italy, Switzerland and Poland — Regulation of water use: international law contribute to the river's flow; thus, the basin as a whole includes parts of 13 countries. Before reaching The potential for conflict over finite freshwater its final destination, the river empties into a spectacular resources like the Danube is ever more likely with delta via three main branches. increasing populations, the growing demand for food, The entire Danube river basin is typically described in and the impact of industrialization, urbanization and three sections — the upper, middle and lower agricultural practices. This is true even in non-arid Danubes — and contains over 300 tributaries (see regions where water scarcity is not an immediately Figure 1). With the completion of the Rhine-Main- pressing problem. International law provides one Danube Canal in 1992, the North Sea and Black Sea mechanism by which to address these conflicts. While are now virtually connected. This is an important the development of international law has not resulted, development as it "opens" the other end of the Danube strictly speaking, in a universally applicable water law and expands its commercial use, enabling ships to cross agreeable to all nations, broad agreement nevertheless Eastern and Western Europe through a system of exists on a number of general principles. Numerous connected waterways. It may also create the need for treaties and conventions have been concluded greater regulation, particularly with regard to pollution regulating the utilization of shared water resources, and navigation. Taken as a whole, this entire water and general principles have emerged from international system has a significant impact on the European custom. Each has played an important role in continent. Recent figures suggest that close to 86 preventing conflicts over water or resolving existing million people live in the drainage area of the Danube disputes. Each has also provided important legal River (Pringle et al., 1993). precedents and guidelines. Treaties typically concern a There are many pressures on the Danube which specific shared resource; these can be either bilateral or reveal the fundamental and often conflicting interests multilateral agreements, the former being far more of its riparian nations. These include: common (McCaffrey, 1993). Throughout history they have addressed a wide range of issues such as • Maintaining adequate river flow for electric power navigation, water rights and shared management. generation and for the dilution of industrial and The evolution of the law of international rivers has urban wastes; generally been characterized by "a clash between two • Maintaining and expanding navigable waterways; dominant ideas — that of sovereignty of the riparian • Assuring an adequate supply of water for irrigation, states and that of internationalization" (Zachlin and industry and other economic uses; Caflisch, 1981). Within these parameters, four theories • Protecting the water quality for drinking, irrigation, have evolved over time that illustrate a wide range of fishing, tourism and nature preservation; interpretations regarding rights of water use and • Preventing floods; and allocation, from extreme nationalism to regional • Protecting the river and its surroundings for recrea- international cooperation: tion, tourism, and conservation of wildlife habitat (Linnerooth, 1990). • The "Harmon Doctrine," which supports the notion The nine riparian countries in the Danube region are of absolute sovereignty to upstream riparians;