Upreti, Trilochan, International Watercourses Law and Its Application ...
Upreti, Trilochan, International Watercourses Law and Its Application ... Upreti, Trilochan, International Watercourses Law and Its Application ...
250 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 251nations should be dealt with urgently according to theprinciples of equality enshrined in the Charter of the UnitedNations. The only solution is to insist that consent must alwaysbe required, and that no project may be allowed without it; if acountry has economic strength, and goes ahead with thedevelopment of any project for which it does not have consent,this must be stopped by UN Security Council intervention,through its power to maintain international peace and security.Wouters argues that the revised protocol of SADC in 2002, andthe Implementation Committee established under theConvention on Long-range Transboundary Air Pollution by theUNECE, set a precedent (established a system) for assistingstates party to a treaty to achieve the goals therein, which theinternational community should follow. 204 Only then wouldequity prevail in every circumstance, across all nations.However, it seems that the Bank has learned by experience, andin 1993 it adopted a new policy initiative by establishing anappeal mechanism and an inspection panel. This procedureallows citizens who may be adversely affected by Bank fundedprojects to file claims regarding violation of its policies,procedures and loan agreements, if the project severely affectsthe environmental or socio-economic situation, such as floraand fauna, or the resettlement and rehabilitation of indigenouspeople. It has also promoted more flexible approaches towardsinformation disclosure by the Bank. 205204 P. Wouters, “Universal and Regional Approaches to ResolvingInternational Water Disputes: What Lessons Learned from StatePractice” in PCIA (ed), Resolution of International Water Disputes, theHague: Kluwer Law, 2003, pp. 111-154. Whilst most watercourseagreements in the past did not include compliance reviews and supportsystems, recent treaties appear to be introducing these mechanisms,which should ensure implementation, and give added value to disputeavoidance efforts.205 World Commission on Dams (WCD), Dams and Development: A NewFramework for Decision Making, London: Earthscan, WCD Report,November 2000, p. 19.The first test case under the above provision was the Arun IIProject 1995, in Nepal, that culminated in cancellation in thelast stage of finalisation; and this was regarded as an enormoussetback and insult to Nepal. After the conclusion of dozens ofstudies, involving the investment of millions of dollars andtaking up years of time, as the project was reaching the stage ofconcluding a final agreement, and while the government ofNepal was waiting for the Bank’s final invitation for thesigning of this agreement, the President of the Bank informedthe Nepalese Prime Minister, M. M. Adhikari, by letter, that theBank had cancelled the project unilaterally. This was the resultof severe criticism from an INGO (INHURED International),about the potential adverse effect of the project on theenvironment, constituting a breach of the Bank’s own policy onenvironment, resettlement and indigenous peoples. The Bankthan constituted an inspection panel of three experts, whovisited the sites and submitted a report, in which breaches of itspolicies and an adverse affect on the environment were found.As a result of that, the Bank cancelled its involvement in theproject. 206 With the creation of a new mechanism, theInspection Panel, although generally speaking, the WB’s newenvironmental orientation is commendable, Nepal did suffereconomically from this Bank policy initiative. Particularlysince there was no alternative project ready for implementation;for this reason Nepal experienced electricity load shedding for206 Report of the Inspection Panel submitted to the Bank, News release no.96/S008 and see also a booklet named “The World Bank & Nepal’sArun III Hydro Project: A Case of Anti-Social Development: UrgentAction Appeal” prepared and compiled by G. Siwakoti Chintan and A.Ma’anit, INHURED International Pub., June (1995), Kathmandu,Nepal. This pamphlet described every detail of the project, from itsmany stages of numerous studies to its cancellation, with muchexplanation of the potential effect on the environment, and resettlementof indigenous peoples, etc. (copies on file with author).
252 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 253several years, and her development was undermined. 207 TheBank has also been blamed for dictating the adoption ofeconomic and other policies, thus exploiting developing statesand retarding their development. As a result, it is argued thatdrawing loans from the WB amounts to surrender of economicsovereignty. 208 However, the latter topic is not an area coveredby this book.4.15 ConclusionsThe issue of water resources development from the standpointof bilateral and regional co-operation has been dealt with, inwhich it has been seen that national effort alone cannot yieldholistic results. Co-operation is not only necessary from thepoint of view of money and technological capability; it is alsoneeded because of the requirements of a watercourse itself. Forexample, in the Nepalese context, barrage, diversion andreservoir sites are available only in Nepal, and from such workshydropower units can be established in Nepal and India;regulated flow control to mitigate flood damage, water forsupply in time of scarcity, and navigation facilities could alsoall be developed. From these works, the needs of states couldbe met and optimum benefits accrued for all. In the wet seasonthere is too much water, causing havoc, but there is not a singledrop of water in the dry season, which in turn causesdevastation, hunger and famine. This observation leads to theconclusion that the characteristics of developing states are207 The World Bank withdrew funding for the Sardar Sarover project inIndia, and a project from Somalia, as a result of Kenya’s objections; italso refused to finance the Three Gorges project, in China, the SouthAntolia Project in Turkey, and the Aswan Dam in Egypt. The reasonswere riparian objections and the environmental disasters likely toensure from the proposed projects.208 S. R. Chowdhury, “Intergenerational Equity: Substratum of the Rightto Development” in S. R. Chowdhury, Erik M.G. Denters & PaulJ.M.de Waart (eds), The Right to Development in International Law,Dordrecht: Martinus Nijhoof Pub., 1992, pp. 350-359.obviously found in the SAARC region, namely the scarcity ofwater and associated issues: water conflicts remain largelyconfined to developing states. 209It appears that without settling major existing politicalproblems in the bilateral sphere, water resources co-operationcannot make the progress that might be expected. Thus, majorchanges are needed in governments’ outlook regarding how todevelop relations with neighbouring countries, how to utilisethese immense water resources for the common benefit, andhow to face the challenges arising from these water problems,for which purpose a summit of the leaders of this region hasbeen suggested. 210 Indeed, the key to the resolution of allnational water resource problems is bilateral and regional cooperation.If upstream work provides any benefit to adownstream state, such benefit could be shared in proportion tothe cost, otherwise it would constitute a windfall, a benefitacquired without any corresponding effort and investment. InIWL, such a windfall would be a case of unjust-enrichment,and as a result unreasonable and inequitable. 211 According tothe norm of equity which takes into account socio-economic,and geographical aspects and vulnerability, Nepal is weakerthan India socio-economically, which has led to persistentproblems in Indo-Nepal relations. Thus, according to theprinciple of equitable utilisation enshrined in Articles 5 and 6of the UN Convention of 1997, India should give a highpriority to Nepal’s development, with a magnanimous attitude.Such policies would be immensely helpful in resolving the209 R. Clarke, Water: the International Crisis, London: Eartscan Pub.,1991, pp. 91-92.210 Supra note 34, p. 130.211 Supra note 136: An upstream state may be reluctant, in the first place,to go ahead with its projects unless it can be assured of receivingcompensation for the uncaptured benefits it would send downstream;see also the Factory of Charzow case in PCIJ Reports, (1928), p. 47.
- Page 90 and 91: Equitable Utilisation / 151 152 / I
- Page 92 and 93: Equitable Utilisation / 155 156 / I
- Page 94 and 95: Equitable Utilisation / 159 160 / I
- Page 96 and 97: Equitable Utilisation / 163 164 / I
- Page 98 and 99: Equitable Utilisation / 167 168 / I
- Page 100 and 101: Equitable Utilisation / 171 172 / I
- Page 102 and 103: Equitable Utilisation / 175 176 / I
- Page 104 and 105: Article 6 of the Rio Declaration as
- Page 106 and 107: 182 / International Watercourses La
- Page 108 and 109: 186 / International Watercourses La
- Page 110 and 111: 190 / International Watercourses La
- Page 112 and 113: 194 / International Watercourses La
- Page 114 and 115: 198 / International Watercourses La
- Page 116 and 117: 202 / International Watercourses La
- Page 118 and 119: 206 / International Watercourses La
- Page 120 and 121: 210 / International Watercourses La
- Page 122 and 123: 214 / International Watercourses La
- Page 124 and 125: 218 / International Watercourses La
- Page 126 and 127: 222 / International Watercourses La
- Page 128 and 129: 226 / International Watercourses La
- Page 130 and 131: 230 / International Watercourses La
- Page 132 and 133: 234 / International Watercourses La
- Page 134 and 135: 238 / International Watercourses La
- Page 136 and 137: 242 / International Watercourses La
- Page 138 and 139: 246 / International Watercourses La
- Page 142 and 143: 254 / International Watercourses La
- Page 144 and 145: Legality River Linking Project / 25
- Page 146 and 147: Legality River Linking Project / 26
- Page 148 and 149: Legality River Linking Project / 26
- Page 150 and 151: Legality River Linking Project / 26
- Page 152 and 153: Legality River Linking Project / 27
- Page 154 and 155: the USA to construct such a huge pr
- Page 156 and 157: 280 / International Watercourses La
- Page 158 and 159: 284 / International Watercourses La
- Page 160 and 161: 288 / International Watercourses La
- Page 162 and 163: 292 / International Watercourses La
- Page 164 and 165: 296 / International Watercourses La
- Page 166 and 167: 300 / International Watercourses La
- Page 168 and 169: 304 / International Watercourses La
- Page 170 and 171: 308 / International Watercourses La
- Page 172 and 173: 312 / International Watercourses La
- Page 174 and 175: 316 / International Watercourses La
- Page 176 and 177: 320 / International Watercourses La
- Page 178 and 179: 324 / International Watercourses La
- Page 180 and 181: 328 / International Watercourses La
- Page 182 and 183: 332 / International Watercourses La
- Page 184 and 185: 336 / International Watercourses La
- Page 186 and 187: 340 / International Watercourses La
- Page 188 and 189: 344 / International Watercourses La
252 / <strong>International</strong> <strong>Watercourses</strong> <strong>Law</strong> <strong>and</strong> <strong>Its</strong> <strong>Application</strong> in South Asia Prospects <strong>and</strong> Problems of Nepalese Water Resources / 253several years, <strong>and</strong> her development was undermined. 207 TheBank has also been blamed for dictating the adoption ofeconomic <strong>and</strong> other policies, thus exploiting developing states<strong>and</strong> retarding their development. As a result, it is argued thatdrawing loans from the WB amounts to surrender of economicsovereignty. 208 However, the latter topic is not an area coveredby this book.4.15 ConclusionsThe issue of water resources development from the st<strong>and</strong>pointof bilateral <strong>and</strong> regional co-operation has been dealt with, inwhich it has been seen that national effort alone cannot yieldholistic results. Co-operation is not only necessary from thepoint of view of money <strong>and</strong> technological capability; it is alsoneeded because of the requirements of a watercourse itself. Forexample, in the Nepalese context, barrage, diversion <strong>and</strong>reservoir sites are available only in Nepal, <strong>and</strong> from such workshydropower units can be established in Nepal <strong>and</strong> India;regulated flow control to mitigate flood damage, water forsupply in time of scarcity, <strong>and</strong> navigation facilities could alsoall be developed. From these works, the needs of states couldbe met <strong>and</strong> optimum benefits accrued for all. In the wet seasonthere is too much water, causing havoc, but there is not a singledrop of water in the dry season, which in turn causesdevastation, hunger <strong>and</strong> famine. This observation leads to theconclusion that the characteristics of developing states are207 The World Bank withdrew funding for the Sardar Sarover project inIndia, <strong>and</strong> a project from Somalia, as a result of Kenya’s objections; italso refused to finance the Three Gorges project, in China, the SouthAntolia Project in Turkey, <strong>and</strong> the Aswan Dam in Egypt. The reasonswere riparian objections <strong>and</strong> the environmental disasters likely toensure from the proposed projects.208 S. R. Chowdhury, “Intergenerational Equity: Substratum of the Rightto Development” in S. R. Chowdhury, Erik M.G. Denters & PaulJ.M.de Waart (eds), The Right to Development in <strong>International</strong> <strong>Law</strong>,Dordrecht: Martinus Nijhoof Pub., 1992, pp. 350-359.obviously found in the SAARC region, namely the scarcity ofwater <strong>and</strong> associated issues: water conflicts remain largelyconfined to developing states. 209It appears that without settling major existing politicalproblems in the bilateral sphere, water resources co-operationcannot make the progress that might be expected. Thus, majorchanges are needed in governments’ outlook regarding how todevelop relations with neighbouring countries, how to utilisethese immense water resources for the common benefit, <strong>and</strong>how to face the challenges arising from these water problems,for which purpose a summit of the leaders of this region hasbeen suggested. 210 Indeed, the key to the resolution of allnational water resource problems is bilateral <strong>and</strong> regional cooperation.If upstream work provides any benefit to adownstream state, such benefit could be shared in proportion tothe cost, otherwise it would constitute a windfall, a benefitacquired without any corresponding effort <strong>and</strong> investment. InIWL, such a windfall would be a case of unjust-enrichment,<strong>and</strong> as a result unreasonable <strong>and</strong> inequitable. 211 According tothe norm of equity which takes into account socio-economic,<strong>and</strong> geographical aspects <strong>and</strong> vulnerability, Nepal is weakerthan India socio-economically, which has led to persistentproblems in Indo-Nepal relations. Thus, according to theprinciple of equitable utilisation enshrined in Articles 5 <strong>and</strong> 6of the UN Convention of 1997, India should give a highpriority to Nepal’s development, with a magnanimous attitude.Such policies would be immensely helpful in resolving the209 R. Clarke, Water: the <strong>International</strong> Crisis, London: Eartscan Pub.,1991, pp. 91-92.210 Supra note 34, p. 130.211 Supra note 136: An upstream state may be reluctant, in the first place,to go ahead with its projects unless it can be assured of receivingcompensation for the uncaptured benefits it would send downstream;see also the Factory of Charzow case in PCIJ Reports, (1928), p. 47.
Change language