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

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280 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 281The law developed so far is based on the principle ofreasonable and equitable utilisation. Some argue that it is tooambiguous a principle with major problems in its interpretationand application. 6 There are, however, several guidelines inArticle 6 for the proper interpretation and implementation ofthe provisions of such laws. The other fact is that the law isonly a tool, the dominant factors are human will and desire toconsistently address and harmonise the interests of thecontestant states. The UNCIW was adopted as a holistic,framework law in 1997, even though this UN vote was notunanimous. Several states still entertain conflicting views oncertain provisions of this law. For example, it has been arguedthat Article 5 of the UNCIW favours upstream states, whilstArticle 7 favours downstream states. Similarly, which rulesshould prevail in the event of a conflict “equitable or no harmrules” remains a disputed issue. 7 Moreover, even in theapplication of these two rules, due to the ambiguity andvagueness surrounding them, there are still conflicting ideas. 8However, the rule of equitable utilisation, which is the core law,contains guidelines and the basis for its application, but itrequires ongoing cooperation between states for its effectiveimplementation. 96 L. Caflisch, “Regulation of the Use of International Watercourses” in S.M. A. Salman & L. B. de Chazournes (eds), InternationalWatercourses: Enhancing Cooperation and Managing Conflict,Washington DC: World Bank Technical paper no 14, p. 16; also see C.B. Bourne, “The Primacy of Equitable Utilisation in the 1997Watercourse Convention” (1997) in XXXV CYBIL, pp. 215-231.7 S. C. McCaffrey, The Law of International Watercourses: Non-Navigational Uses, Oxford: Oxford University, 2001, p. 308.8 R. St. McDonald, “Charles B. Bourne: Scholar, Teacher and Editor,Innovator in the Development of International Law of Watercourse”(1996) in XXXIV CYBIL, pp. 53-87.9 J. Brunnee & S. J. Toope, “The Changing Nile Basin Regime: DoesLaw Matter?” (2002) in 43 HILJ, pp 131-151; also see supra note 1, p.467.Chapter three deals with the origin, development andapplication of equity. Furthermore, application of equity in thesharing of natural resources, the practice of the ICJ and itspredecessor, and other municipal courts and tribunals havebeen analysed. The research findings suggest that equity hasbecome the pivotal point for bridging any gaps betweencontestants views or principles. The role of equity has provenits capacity to prevent conflicts in such a way that everyinterest is addressed with a rational resolution of the problemsthat lead to conflict. In order to fill the chasm between poorstates and the developed states, to balance and preserve theinterests of present and future generations, to carry outdevelopment without adversely damaging the environment, andto accommodate all interests in a shared resource, equity hasremained a central issue. 10 Equity has given flexibility andstrength to decision-makers in harmonising the divergentinterests of disputant parties. However, it is only a tool; itsapplication requires the utmost measure of fairness with aprofusion of liberal attitude and sound discretion.The political use of equity in human rights, environment andsustainable development issues must be differentiated from thelegal use of equity. The legal use of equity in IWL has beendeveloped by the Supreme Court of the United States and someother European states in the twentieth century in the resolutionof conflicts involving the allocation and sharing of waterbetween federal states and provinces. 11 The PCIJ and the ICJhave contributed immensely to its application and developmentin their decisions for sharing and delimiting the ContinentalShelf and disputed issues arising over it. The LOSC 1982 andthe UNCIW have codified equity as a rule of customaryinternational law. Furthermore, resolution of both existing andfuture conflicts are also expected to be resolved by theapplication of equity. In fact, equitable utilisation has become10 D. French, “International Environmental Law and the Achievement ofIntragenerational Equity” (2001) in 31 ELR, pp. 10469-10485.11 Demonstrated in Chapter two.
282 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 283the cornerstone of resolution of the issues on shared naturalresources, including shared watercourses. 12 The tremendoussuccess in new technological innovations has the potential tohelp avert conflicts. Examples are, re-use of water, 13 distillationtechnology, and technologies to deliver water over greatdistances. Some ambitious propositions that can be cited in thiscontext are: Turkey’s plan to deliver waters to the wholeMiddle East, cloud shedding and unnatural precipitationprogrammes as undertaken presently in the US and Israel,potential water delivery, and use of Antarctica's and also thehigh Himalaya's waters. 14Chapter four dealt with the issues of Nepal and regional cooperationin south Asia. It assessed the problems and prospects,and suggested measures to solve problems in such a way thatevery nation can win and no one loses. 15 A historicalperspective on bilateral relations, and water relations inparticular have been given and evaluated in the light of presentchallenges. The potential benefits to Nepal, India, Bangladeshand Bhutan in bilateral and regional perspectives are verypromising. However, the reality and the existing framework ofco-operation is far from satisfactory. 16 There are opportunitiesfor numerous trade-offs amongst these nations, whereby themisery of poverty could be overcome by prosperity within the12 S. C. McCaffrey and M. Sinzela, “The United Nations Convention onInternational Watercourses” (1998) 92 AJIL, p. 106.13 Singapore is planning to substitute at least 2% of imported water byrecycling waste water by the year 2004,www.internationalwaterlaw.org.14 R. Clarke, Water: The International Crisis, London: Earthscan Pub.,1991, p.110.15 B. Subba, Himalayan Waters, Kathmandu: Panos South Asia, 2001, p225; also see B. G.Vershese, “Regional Cooperation for Optimal Basin Development” inB. G. Verghese & R. R. Iyer (eds) Harnessing the Eastern HimalayanRivers: Regional Cooperation in South Asia, New Delhi: Konark Pub.,1994, pp. 263-280.16 S. D. Muni, India and Nepal: A Changing Relationships, New Delhi:Konark Pub., 1996, pp. 161-176.framework of the concept of, ‘dependence withininterdependence’. 17 Past experiences have been marred byconfrontation rather than improved by meaningful co-operation.Such attitudes, however, appear to be changing, most recentlyin the Nile basin 18 and south Asia. 19 It is essential to takeadvantage of such a positive situation. 20 As a result of pastrelations shrouded by the miasma of negative attitudes ofsuspicion, each state is cautious and doubtful of the other. 21This research has indicated the implications of co-operation.For its achievement, however, a radical change in working aswell as in thinking is urgently required and the leaders of thisregion must undertake radical change with charismaticleadership. 22Chapter five has demonstrated the legal issues involved in theRiver-Linking Project of India, its relevance to get rid ofrecurrence flood, drought and famine, potential advantage fromthe project to India and her neighbours and the role of regionalcooperation. The best way to tackle the poverty in south Asiahas been is depend how states can cooperate with others,understand other sensivity and how law help them toimplement this huge project.6.3 Implications of Water ScarcityThe alarming increase of the world’s population poses a threatto the maintenance of the availability and distribution of these17 B. C. Upreti, Politics of Himalayan River Waters, New Delhi: NiralaPub., 1993, pp. 158-178.18 Supra note 9, p. 159.19 The Power Purchase agreement on west the Seti project and the riverLinking Project are evidence of it.20 S. P. Subedi, “The Hydro Politics of South Asia: the Conclusion of theMahakali and Ganges River Treaties” (1999) 93 AJIL, p. 962.21 B. Crow, A. Lindquist & D. Wilson, Sharing the Ganges: the Politicsand Technology of River Development, New Delhi: Sage Pub, 1995, p.222.22 Supra note 4, p. 393.
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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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Chapter- ThreeEquitable Utilisation
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Introduction / 1 2 / International
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