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

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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.
18 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 19In the light of water as essential requirement for people, thedifficulty of access to water and the problems associated withits scarcity, a very careful and prudent resolution of the issue isof the utmost need in order to maintain smooth relationsbetween riparian states. As has been analysed, the issue by itscomplex nature requires a prudent and balanced resolutionreconciling the diverse interests of contestant states. 52.2 Sources of International Watercourses Law2.2.1 Earliest Stage of Development of IWCThe quantum of water is the same as it was three billion yearsago. 6 At the same time, its uses have gone up to such a pointthat to keep a balance between demand and supply has becomea formidable task. Furthermore, such waters have also becomestrategic resources for several states in order to attain the socioeconomicand political aspirations of their people as well as thebest tool for bargaining with other riparian states. The otherreason, however, for the huge increase in the use of the watersis the rising prosperity in human lives along with the rapidpopulation growth. This exacerbates the problem further, andthe consequence is obvious, more stress on water supply.As a result of misuse and overuse of water, the quantityavailable as well as the quality has been found to be decreasingin several parts of the world. Consequently, it has given birth toseveral conflicts. Earlier development in the area by the courts,tribunals, bilateral as well as multilateral conventions, customs,(2) This provision shall not prejudice the power of the court to decidea case ex aequo et bono, if the parties agree thereon.”5 R. Clarke, Water: The International Crisis, London: Earthscan Pub.,1991, p. 92.6 A. Dixit, Basic Water Science, Kathmandu: Nepal Water ConservationFoundation, 2002, p. 6: “the total supply [of water] neither grows nordiminishes. It is believed to be almost precisely the same now as it was3 billion years ago. Endlessly recycled, water is used, disposed of,purified and used again.”agreements, and writings of the publicists greatly inspired andinfluenced the resolution of most of the conflicts. Ultimately,on numerous occasions, disputes were resolved amicably andpeacefully by accommodating divergent interests, but some ofthem remain unresolved. 7 Resolution of the disputes wascarried out in accordance with the concepts of co-operation andgood neighbourly relations, based on equity, which were laterlargely followed by the other states in their bilateral relationsand appreciated by the international community. Efforts will beconcentrated on assessing and evaluating the far-reachingconsequence of these achievements and their implications forthe development of IWL.As stated earlier, scientific innovation has enabled humans toundertake water diversion to far away places as exemplified inthe western part of the United States, Australia, the then SovietUnion, Israel and several other parts of the world wheregrandiose diversion works have been undertaken. 8 In theMiddle-East (ME), a complex and huge project, 'the peacepipeline' has been proposed, which is supposed to deliver waterfrom Turkey to all Middle-Eastern countries including Israel.Apart from this, in Libya, there is an ambitious plan forcollecting and diverting water in a pipeline, also called a 'greatman-made river', which stretches from deep aquifers, so called“fossil” water. This is intended to augment the seriouslydepleted groundwater supplies in the coastal region, bybringing water from the hundreds of desert wells at Tazirbu andSaria. 9 Nevertheless, with such new developments andinnovations, the formulation of particular rules that could7 C. B. Bourne, "The Primacy of the Principle of Equitable Utilization inthe 1997 Watercourse Convention" in XXXV CYBIL, (1997) pp. 215-231.8 P. Wouters (ed), International Water Law: Selected Writtings ofProfessor Charlse. B. Bourne, the Hague: Kluwer Law, 1997, pp. 221-241.9 Supra note 2, p. 10.
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