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Equitable Utilisation / 171 172 / International Watercourses Law and Its Application in South Asia(WCD). 222 For example, the Aswan dam in Nile and Farakka inIndia have inflicted damage to the environment. Jackson hasrightly observed that the notion of Third World leaders inrelation to environmental protection and its relation withdevelopment is that environmental problems can only betackled when poor countries have achieved a certain level ofprosperity. Moreover he gave an example that the first IndianPrime Minister, Mr Nehru, described dams as the temples ofmodern India and saw them as a symbol of national pride. 223More than 57% of all dams are in India and China. 2243.13 The Role of Joint Commissions in IWCThe idea of treating an IWC as a single unit, ignoring thepolitical boundaries, requires mechanisms that bridge the gapbetween sovereign nations. To pursue this notion, the creationof an agency which is independent of governments and able toresolve issues of common concern is essential. The earlywritings of jurists that contributed to the development of thisconcept have been immensely beneficial. For example, Smithenunciated the idea in the 1930s, and was supported by222 WCD, Dams and Development: A Framework for Decision Making,Earthscan, London, (2000), pp. 8-10. 40 to 80 million people weredisplaced by these dams, people’s health and livelihood have oftenbeen put at risk and adequate compensation has not been granted. Thishas also caused severe damage to the environment. In two years, thecommission undertook studies of 11 large dams in five continents,surveyed 150 dams in 56 countries, conducted 17 thematic reviewsalong five dimensions of the debate, as well as four regionalconsultations and attracted 947 submissions form 97 countries. Alsosee W. Barnaby, “Re-routing World Waterways”, in The Times,December 1 (2000), p. 26.223 B. Jackson, Poverty and the Planet: A Question of Survival, London:Penguin, 1994, p. 10.224 Supra note 222, pp. 40-42; also see A. Roy, “The People vs the God ofBig Dams”, The Times of India, 25 October (2000), p. 15.Andrassy, Laurterpacht and others. 225 The ILI in its 1911Resolution recommended the establishment of a JointCommission as an advisory body to carry out projects on suchbasins. 226 This idea was also advocated at the SeventhInternational Conference of American States held atMontevideo in 1933. An early Joint Commission to undertakesuch a special responsibility (to determine the best sites forbuilding locks on the Meuse) was constituted in 1785 betweenGermany and the Netherlands. 227 Since then, water conflictsand disputes have been mitigated and resolved through thecreation of bi-national bodies that have greatly contributed tothe equitable resolution of water disputes. The roles of suchcommissions, committees or groups have always remainedcatalytic and commendable. 228The reasons for the success of joint bodies are multidimensional.They include neutrality, expert knowledge on thesubject and a strong will to seek out a sound and acceptableresolution under special circumstances. The tremendoussuccess of such commissions can be seen in practice in themajor river basins. 229 More than 300 IWCs have come intobeing after the rupture of the former Soviet Union andYugoslavia; the numbers are increasing. For most of thewatercourses concerned such commissions are already in place.It is therefore argued that the establishment of a commissioncould contribute to the resolution of any impasse, however longand complicated a dispute may be. The constitution of such a225 L. A. Teclaff, The River Basin in History and Law, the Hague:Martinus Nijhoff, 1967, p. 152.226 Supra note 198, p. 275: Article 7 suggests appointing a JointCommission.227 Supra note 225.228 Even complex issues have been resolved by such entities, for example,by the commissions between Canada and the USA, Mexico and USAand even between arch rivals India and Pakistan.229 T. Upreti, "The Role of Joint Commission in InternationalWatercourses Issues" The Kathmandu Post, 22 July (2001).
Equitable Utilisation / 173 174 / International Watercourses Law and Its Application in South Asiacommission could be varied, involving bureaucrats, politiciansand even heads of state. 230 The Mahakali River Treaty 1996between Nepal and India, envisages such a joint commission.Despite this, the commission has yet to materialize, and neitherthe finalisation of DPR nor the disputes over inundationbetween the two countries have been resolved.The International Waterways Commission of 1905 (laterreplaced by the Joint Commission established under the Treatyof 1909 between Canada and the USA) 231 is a better example.This Treaty is a landmark event in the development andresolution of serious disputes over the use of waters between apowerful state and a weaker neighbour. This Treaty providesthat in the event of an injury, the party that inflicts such injuryshould negotiate to abate and mitigate such injury or payreparation for it. The commission has quasi-judicial authority toadminister and, conduct research and investigations as well aspublic hearings. This is possible through political will, eventhough the physical conditions of both states differ, and theirinterests vary. Article VII of this Treaty establishes the IJC withsix commissioners, three appointed by each of the CanadianPrime Minister and US President. Without the consent of theIJC, no water projects are possible in the IWC. 232 Moreover,every complex issue has been resolved through it. It is the bestexample of the sharing and allocation of mutual benefits from ashared watercourse using the mechanism of an IJC.The International Boundary and Water Commission (IBWC) isa mechanism created by the USA and Mexico under a 1944230 Supra note 225, p. 140-141: The Upper Volta River Authority, isheaded by the President of the Ghana, although it is a nationalauthority.231 D. LeMarquand, "The International Joint Commission and ChangingCanada-United States Boundary Relations" (1993) in 33 NRJ, p. 62,also see D. J. Allee, "Subnational Governance and the InternationalJoint Commission: Local Management of United States and CanadianBoundary Waters” (1993) 33 NRJ, pp. 133-151.232 Ibid. pp. 65-67.Treaty. Its jurisdiction is more limited in many respects than theUSA-Canada IJC. Nevertheless, it has made an immensecontribution to the resolution of conflict and reconciled theinterests of both nations. The implementation of the treaty’sprovisions is its basic duty. The commission consists of twonational sections. A single commissioner, who must be anengineer, heads each section. Experience suggests that publicdemand in both countries is for the jurisdiction of thecommission to be expanded to enable it to cover a wider rangeof issues. 233The creation of a Joint Commission in Europe took place in theearly Nineteenth century. Several commissions exist withjurisdiction over the Rhine, Danube and Meuse Rivers. For theNile basin, the Nile Commission is in place; for the Indus, thereis a Joint Commission, which has successfully worked evenduring times of war between the arch-rival states. 234 There areseparate multilateral projects for the Mekong, SADC, Amazonand so on, which are also administered and implemented ofcommissions. The results show that the creation of a JointCommission or a committee in order to successfully implementtreaty provisions and enhance co-operation in using the watersof an IWC for mutual benefits is essential.The tremendous success of such commissions and their smoothworking is well exhibited in the Scandinavian states. Russiaand Finland set up the Joint Frontier Commission in 1964. TheFinland-Sweden Frontier Rivers Commission was set up in1971 by the Boundary Rivers Agreement, as was the Finish-Norwegian Frontier Rivers Commission. As argued by233 S. Mumme, "Innovation and Reform in Transboundary ResourceManagement: a Critical Look at the International Boundary and WaterCommission, United States and Mexico" (1993) in 33 NRJ, p. 103, alsosee H. InGram & D. R. White, "International Boundary and WaterCommission: An Institutional Mismatch for Resolving TransboundaryWater Problems" 33 NRJ, et al., pp. 153-154.234 Supra note 17 (Soffer), p. 250.
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International WatercoursesLaw and I
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PrefaceIn this book, the author has
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International Treaties and other Do
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ADBAJILAus.JILAYBLADPILALCCASEANAGO
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GlossaryMap of the Ganges BasinThe
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Chapter- ThreeEquitable Utilisation
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Introduction / 1 2 / International
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