Upreti, Trilochan, International Watercourses Law and Its Application ...

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226 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 227“While treaty practice can be invoked in supportof the principle of downstream benefits where theact or the omission to act that confers the benefitswas done or not done at the request of thedownstream state, treaty practice does not exist tosupport the wider proposition that a downstreamstate is obliged to share benefits that it receivesfrom the acts or omissions of an upstream statethat it has not asked for or otherwise agreed to.The obligation to share downstream benefits,however, may exist under customary internationallaw even when these benefits have not beensolicited or agreed to. Logically, the obligationwould seem to be implicit in the principle ofequitable utilization; for, if benefits are to beshared equitably, it should not matter whether ornot they were sought by the beneficiary.Furthermore, a failure to share windfall benefitswould seem to be a case of unjust enrichment.This is not to say, however, that there may not bea difference between a case in which adownstream state has asked for a benefit and onein which it has not so asked; in the latter case,equity might dictate that the downstream state notpay as much as it would have to in the formercase.” 139Another example is provided by the Owen Falls Dam inUganda, where Egypt has developed and supplied hydropowerto Uganda at her own cost; however, the water augmented inthe reservoir was exclusively for her own use. In order tosupervise the water and power arrangements, a residentEgyptian engineer was provided for in the agreement betweenthe two states; in addition, electricity was produced for Uganda,and reparation for resettlement paid to her, at Egypt’s expense,139 Ibid. p. 4.as a downstream benefit (accruing in this case to the upstreamcountry). 140Besides this, in India, even in the sphere of inter-state relations,the states of UP and Bihar, agreed to share both costs andbenefits in proportion, in the jointly developed Muskhand DamProject. 141 The interesting fact about this project is that centralgovernment intervention was required in order to conclude thisagreement. Later, the states of Gujarat and Rajasthan alsoconcluded another agreement on cost sharing in the Bajaj SagarDam Project in 1966, in which Rajasthan agreed to pay anamount to Gujarat for work undertaken by the latter and thebenefit was shared by the former. 142 In 1975, the constructionof the Kadana dam submerged territory in Rajasthan, for whichGujarat paid compensation. In another dispute between Gujaratand Madhya Pradesh (MP) (both Indian states), over Narmadawaters in the Narmada Sagar dam, the Narmada Tribunalapplied this principle and as a result MP obtained downstreambenefits from Gujarat. 143Moreover, there is a further interesting example of sharingdownstream benefits with another sovereign state. India isplanning to construct the Dihang Dam in its far east, which, sheclaims, would bring down the flood level by one metre, withBangladesh substantially benefiting from the mitigation of theflood damage. Dubey, a former foreign secretary of the GOI,has questioned how India can deny Nepal payment fordownstream benefits resulting from Nepalese work whilst Indiais simultaneously bargaining with Bangladesh over this140 D. A. Caponera, “Legal Aspects of Transboundary River Basin in theMiddle East: The Al Asi (Orontes), The Jordan and The Nile” (1993)in 33 NRJ, pp. 654.141 Supra note 54, pp. 313-314.142 Ibid. pp. 314-315.143 Supra note 22 pp. 323-324.
228 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 229project. 144 This could in fact form the basis for negotiationsaimed at resolving one of the outstanding issues between Indiaand Nepal.In order to share the downstream benefits co-operation isessential. The prerequisite for achieving or sharing these kindsof broader benefits are co-operation, good neighbourlyrelations, and good faith between the riparian states. That is tosay, in the absence of any investment of money, effort ortechnology by the lower riparian country, if hard work andinvestment is put into any water resources project in a boundaryor transboundary watercourse, and such work yields any benefitto the downstream country (e.g. augmentation of water, floodmodernisation, navigation, power generation, recreation,fisheries), benefits must be paid for by the beneficiary inproportion to the cost and benefits. Avoided cost theory (amethod of allocating costs and benefits in water projects) willbe helpful in assessing benefits; as a case in point, it seems thatNepal is willing to sell power to India at the alternative thermalor nuclear replacement cost, plus generation cost. 145This issue has been recognised in India in principle as well asin practice. For example the Indian River Act of 1956, Section15 (4), has recognised the downstream benefit concept. ThisAct provides that in the preparation and execution of schemesby the Board it shall take into account the costs likely to beincurred in constructing and maintaining such works; and thecosts shall be allocated among the interested governments insuch proportion as may be agreed or, in default of agreement,“as may be determined by the Board having regard to thebenefits which will be received from the scheme by them.” 146In addition, a committee constituted by the Government of144 Supra note 78, pp. 51-57; also see R. Paisley, “Adversaries intoPartners: International Water Law and the Equitable Sharing ofDownstream Benefits” (2002) in 3 MJIL, pp. 280-300.145 Supra note 22, p. 282.146 Ibid.India has recommended that such benefits must be sharedbetween the states concerned; this report was submitted to theIndian government in 1961. 147 Furthermore, it seems that theIndian government has practised the idea of sharing the benefitsproportionately in the interstate sphere of India. The Ministryof Irrigation and Power wrote to all state Governments on April17, 1967, stating that the cost of multipurpose river valleyprojects should normally be allocated only to three functions:irrigation, power and flood control. The letter recommendedthe “facilities used” method of allocation of joint costs inpreference to the “alternative justifiable expenditure” or“separable costs, remaining benefits” methods. 148In the United States of America, the principles of downstreambenefits have also been practiced in the interstate sphere. Forexample, Section 10 (f) of the Federal Power Act, 1935,imposes on the Federal Power Commission the duty todetermine the benefits to downstream plants from upstreamstorage, and assess charges against those downstream plants. 149In fact, the United States has remained fertile land for theenunciation of the principle of equitable apportionment, which147 Ibid. p. 323: The Yadav Mohan Committee was appointed by theGovernment of India in 1961 to examine the levy of charges forutilisation of water on a downstream project. The committeerecommended as follows: “when an upstream project is constructedlater than an existing downstream project, the latter shall be liable topay for the benefit obtained from an upstream project irrespective ofthe period that has elapsed after its construction; but when thedownstream project is constructed after the upstream project, thedownstream project need pay for the benefits received only if it isconceived within 20 years of completion of the upper project. In eithercase the charge will be borne only if it is clearly established that thedownstream project has been benefited by the changes in flows orotherwise by the construction or operation of the upstream project. Thelower project will bear the cost to the extent that the actual additionalbenefits are made available to it and as and when these benefitsaccrue”.148 Ibid. p. 324.149 Ibid.
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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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