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

More documents

Recommendations

Info

246 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 247appreciable harm; without this assurance being given, fundingcannot be made available. 194Under such an arrangement, the poorer state cannot developany water projects in her watercourses whilst a wealthy statecan develop any project of her own. The reason for thissituation is that the wealthy country can undertake a waterproject in an IWC, ignoring other riparian interests and onlytaking into consideration her own maximum benefit; this in fact194 The World Bank Operational Manual: Operational Policies; Project onInternational Waterways. The WB annex 2.A.OP. 7.50 October 1994,pp. 193-200. (OP 7.50 and BP 7.50 have been amended in 2001. Alsosee www4.worldbank.org/legal/legen/legen_iw.html).“Agreements/ Arrangements3. Projects on international waterways may affect relations betweenthe Bank and its borrowers and between states (whether membersof the Bank or not). The Bank recognizes as that the co-operationand goodwill of riparians is essential for the efficient utilisationand protection of the waterway. ...In cases where differencesremain unresolved between the state proposing the project(beneficiary state) and other riparians, prior to financing theproject the Bank normally urges the beneficiary state to offer tonegotiate in good faith with the other riparians to reachappropriate agreement or arrangements.”4. “NotificationThe bank ensures that the international aspects of project on aninternational waterways are dealt with at the earliest possibleopportunity. If such a project is proposed, the Bank requires thebeneficiary state, if it has not already done so, formally to notifythe other riparians of the proposed project and its project details(see B.P 7.50, para. 3). If the prospective borrower indicates tothe bank that it does not wish to give notification, normally theBank itself does so. If the borrower also objects to the Bank’sdoing so, the Bank discontinues processing of the project. Theexecutive directors concerned are informed of thesedevelopments and any further steps taken.”6. “Following notification, if the other riparians raise objections tothe proposed project, the Bank in appropriate case may appointone or more independent experts to examine the issue inaccordance with B P 7.50, paras. 8-12. Should the Bank decide toproceed with the project despite the objections of the otherriparians, the Bank informs them of its decision.” p. 194.frequently happens. 195 The argument is that although IWL isuniversal, its application varies. That is to say, if you are acountry with resources, you can develop a project as you wish,even to the detriment of others and no one can stop you; but ifyou have no resources you have to borrow the money, and onlyif the riparian states concerned are in favour can the project bedeveloped. The wealthy nations have not adhered to the law,whereas the developing nations can do nothing except agreewith all the preconditions of the donor, which constitutes aninequitable arrangement in this area. If equality, fairness andjustice are to prevail, then this impractical and unfair systemshould be reassessed, and a fair and equitable arrangementshould be arrived at.In other words the WB, by giving precedence to the ‘no harm’principle over more fundamental and overarching principles –particularly that of reasonable and equitable utilisation – isignoring the main thrust of IWL. 196 In fact, from Article 7, it is195 In the Nile basin, downstream Egypt had utilised all the benefits, andvetoed the other upstream nations, particularly Ethiopia, from utilisingthe Blue Nile’s water. Whereas in the Euphrates and Tigris Basin,Upstream Turkey is in an advantageous position, ignoring Iraq’slegitimate and historic right over it. She has utilised and diverted waterfor her own interests in 1991 during the Gulf War, and diversion of allwaters of the Euphrates to fill the Ataturk reservoir was proposed. T.Hoffer, "International Inland Waters" (1994), in 4 Waters Nepal, p.304, states that India diverted the Ganges waters at the Farakka withoutformally informing Pakistan (later Bangladesh); on the contrary, theobjections raised in this connection were not heard by the former, andeven when the case was brought to the UNGA in 1976 by the latter, notangible result for reparation to the former was undertaken.In 1948 India temporarily interrupted the Indus river waters toPakistan, advocating Harmon's doctrine; as for the USA, she divertedthe Chicago river’s waters ignoring Canadian interests.196 Commentary, II (part two)YBILC (1994), p. 103: “in certaincircumstances “equitable and reasonable utilization” of an internationalwatercourse may still involve significant harm to another watercourseState. Generally, in such instances, the principle of equitable andreasonable utilisation remains the guiding criterion in balancing theinterests at stake.”
248 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 249clear that not all harm is prohibited by law, and the abovementioned notification is not a legal requirement in every case.The existing WB policy departs from that of the UNCIW, andas a result favours bigger and more powerful lower riparian tothe detriment of smaller and weaker upper riparian states. TheWB does not have the authority to change or undermine thebalance reached in the UNCIW by introducing its owncontroversial conditions on financing projects on internationalwaters and the WB also does not have the authority to definerights, duties and obligations of upper and lower ripariancountries in IWC’s. 197Special clauses favourable to the less developed states havebeen written into the instruments of numerous institutions, suchas GATT, the WTO, the UNCTAD, and the LOSC Convention.Moreover, the third United Nations Conference on the LeastDeveloped Countries held in Brussels, 14-20 May, 2001,adopted a programme of action for the assistance of leastdeveloped countries. 198 Such favourable rules are absolutelyessential to a vulnerable state. 199197 Supra note 191, pp. 40-43.198 Special facilities and concessions in the international system such astrade, investment and favour have been recommended. See “ThirdUnited Nations Conference on the Least Developed Countries”Brussels, 14-20 May, 2001, pp. 4-62.199 J. R. Crook & S. C. McCaffrey, “The United Nations Starts Work on aWatercourse Convention” (1997) in 91 AJIL, pp. 374-377: Article 125 ofthe Law of the Sea provides the right of access to and from the sea, whichis also regarded as a customary rule of international law and gives specialconsideration to land-locked and geographically handicapped nations;similar arrangements could be made for such nations whilst applying andinterpreting the provisions of Article 5 of the UNCIW. Also see supra note74, pp. 187-196. The WTO and Debt relief movement of the BrettonWoods Institutions, and the Millennium Development Goal set by the UNfor development for poor countries and the UNCTAD also undertookspecial clauses favouring the support of such nations in their manydocuments, and all these matters are guided by the concept of equity. Thus,the international community needs to adopt a new plan and policy in orderto understand and address the pressing needs of weak, vulnerable andgeographically disadvantaged nations.Nepal has continually come off badly in bilateral arrangementwith India. After the conclusion of several feasibility studiesand the expenditure of vast amounts of time and money, theSikta, Babai and Rapti irrigation projects, the MulghatMultipurpose project and the Kanaki Multipurpose project wereall cancelled due to Indian objections. 200 Recently, the WB haslent US$ 80 million for a power development fund to Nepal;this was in fact announced after the cancellation of the Arun IIProject (1995). It has asked riparian consent from China, Indiaand Bangladesh, a move that has been severely criticised inNepal by water experts, saying that it will establish a newunjust precedent, and a discriminatory attitude towards Nepal;for these reasons some of them have recommended that Nepal’srelationship with the Bank should to be reviewed. 201 Moreover,S. N. Paudel went on to say that the Bank did not giveinformation to or obtain consent from Nepal while it provided aUS$ 1 billion loan to the Indian state of Uttar Pradesh todevelop an irrigation project. 202 At the same time it is askingriparian consent before lending money to the PowerDevelopment Fund (PDF) in Nepal, which is obviously a caseof discriminatory behaviour on the part of the Bank.The Global Environment Facility (GEF) was established andsubsequently restructured to carry out sustainable developmentactivities in the areas of global warming (50% of its fund), Bio-Diversity (30%) and to protecting International Waterways(20%). However, there are similar preconditions as well.Besides, every nation and institution has adopted similarrules. 203 Thus, it is argued that the consideration of the unfairand impractical circumstances prevailing upon vulnerable200 Supra note 22, p. 341.201 Staff, “the World Bank lent money against its own policy”, A highlyplaced authority in the Ministry of Water Resources also noted thatsuch loan was provided without giving notice to Nepal. TheKathmandu Post, August 7 & October 3, 2002.202 Staff, “Nepali Experts comes heavy to the World Bank”, The RisingNepal 7 August, 2002.203 www.gefweb.org/operational_policies/operational_programs/OP_8_english.pdf.
Page 2 and 3:
International WatercoursesLaw and I
Page 4 and 5:
PrefaceIn this book, the author has
Page 6 and 7:
International Treaties and other Do
Page 8 and 9:
ADBAJILAus.JILAYBLADPILALCCASEANAGO
Page 10 and 11:
GlossaryMap of the Ganges BasinThe
Page 12 and 13:
Chapter- ThreeEquitable Utilisation
Page 14 and 15:
Introduction / 1 2 / International
Page 16 and 17:
Page 18 and 19:
Page 20 and 21:
Introduction / 13 14 / Internationa
Page 22 and 23:
16 / International Watercourses Law
Page 24 and 25:
Page 26 and 27:
Page 28 and 29:
Page 30 and 31:
Page 32 and 33:
Page 34 and 35:
Page 36 and 37:
Page 38 and 39:
Page 40 and 41:
Page 42 and 43:
Page 44 and 45:
Page 46 and 47:
Page 48 and 49:
Page 50 and 51:
Page 52 and 53:
Page 54 and 55:
Page 56 and 57:
Page 58 and 59:
Page 60 and 61:
Page 62 and 63:
Page 64 and 65:
100 / International Watercourses La
Page 66 and 67:
Equitable Utilisation / 103 104 / I
Page 68 and 69:
Page 70 and 71:
Page 72 and 73:
Page 74 and 75:
Page 76 and 77:
Page 78 and 79:
Page 80 and 81:
Page 82 and 83:
Page 84 and 85:
Page 86 and 87:
Page 88 and 89: Equitable Utilisation / 147 148 / I
Page 104 and 105: Article 6 of the Rio Declaration as
Page 106 and 107: 182 / International Watercourses La
Page 144 and 145: Legality River Linking Project / 25
Page 154 and 155: the USA to construct such a huge pr
Page 188 and 189:
Page 190 and 191:
Page 192 and 193:
Page 194 and 195:
Page 196 and 197:
Page 198 and 199:
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?