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

16 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 17Chapter- TwoDevelopment and Codification ofInternational Watercourses Law2.1 IntroductionThe availability of and demand for water was not a problemuntil the 1950s except in a few countries with arid and semiaridclimates. 1 Thus, there were very few conflicts and disputesin this area except in the western part of the United States andsome parts of the Middle East. 2 In fact, the development ofIWL is a recent phenomenon in international relations. As aconsequence of the increase in various competing uses, givingrise to increasing disputes and conflicts, the necessity for lawsto resolve the issues was direly felt. In this context, variousstate practices, concepts and rules emerged. However, thedevelopment and codification of such rules were undertaken ona piece-meal basis, not based on a holistic framework orapproach.As the human powers to control, divert and use the mightyrivers through scientific innovation increased, competing aswell as complementary uses, such as, recreation, irrigation,hydropower, industrial, and drinking water have put evengreater strains on finite resources. As a result, hundred of damsand reservoirs have been constructed and water delivered fardistances to where it was needed; that is to say, technologyhelped undertake mammoth water projects. Such activities, not1 L. Caflisch, "Regulation of the Uses of International Waterways: TheContribution of the United Nations" in M. I. Glassaner (ed), TheUnited Nations at Work, Westport, CT: Prager, 1998, p. 4.2 S. C. McCaffrey, The Law of International Watercourses, Oxford:Oxford University, 2001, pp. 8-15.surprisingly, led to conflict amongst communities and nations.This was exacerbated in the areas where water was alreadyscarce.The International Law Commission (ILC), an official body ofthe United Nations, drafted and adopted the UNCIW. Severalprinciples enunciated in it will be critically assessed, byconsidering the diverging interests and views of states and theirrepresentatives, including the views of the SpecialRapporteurs. 3There are more than 300 international watercourses (IWC),which are regulated by more than the same number of treaties.The fact is that the practices of states are as different as theissues of each watercourse are unique, and require different andspecial arrangements. A few representative treaties will beevaluated, with an appraisal of the principles associated withthese treaties. In the process of the resolution of disputes thatemerged between states, judicial pronouncements by the PCIJ,the ICJ, federal courts and arbitral tribunals will also bediscussed. In order to tackle the issues efficiently, a separatediscussion and assessment of each segment of the sources ofinternational law, as stipulated in article 38 of the ICJ Statute,i.e., state practice, judgements of courts, international customsand writings of reputed publicists, will be carried out. 43 36 ILM UNCIW, 1997, pp 700-720; also see II (1) YBILC (1994), pp.88-135.4 Article 38 of ICJ Statute states: “(1) The court, whose function is todecide in accordance with international law such disputes as aresubmitted to it, shall apply:a. International conventions, whether general or particular,establishing rules expressly recognised by the contesting states;b. International customs, as evidence of a general practice acceptedas law;c. The general principles of law recognised by civilised nations;d. Subject to the provisions of Article 59, judicial decisions and theteachings of the mostly highly qualified publicists of the variousnations, as subsidiary means for the determination of rules of law.