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

34 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 35of ownership of water with respect to shared resources. Themain thrust of the case concerned the implementation of aFrench court decision in Italy, but at the same time, some rulesof international water sharing were discussed:“the international duty of the state not to impedeor to destroy the opportunity of the other states toavail themselves of the flow of water for their ownnational needs”. 49Nonetheless, the basic rule of an IWC, as advocated in thejudgement, is equality of right that must be utilised equally,fairly and equitably as not to inflict injury beyond the frontiersof that state.A dispute relating to water sharing and allocation emergedbetween German provinces in Wurttemberg & Prussia v. theBaden, in which the Supreme Court Staatsgerichtshof renderedits judgement in 1927. 50 The facts of the case itself areinteresting, due to the unique natural phenomenon of the waterof the Danube sinking into the aquifers, the seepage waterreappearing in a separate drainage basin, (that of the RhineRiver located in the state of Baden). In the Wurttemberg sectionof the Danube, all the water disappeared as a result of thenatural sinking phenomenon, which made the case furthercomplicated, dragging Wurttemberg into the controversy.Baden, on its part, requested an injunction restrainingWurttemberg from constructing and maintaining certain worksthat were allegedly intended to prevent the natural flow of theDanube waters to the Aach. At the same time, Prussia,downstream of Wurtttemberg, was also injured by the loss ofwater from the Danube and intervened in the suit on the side ofWurttemberg. 51 In this context, Wurttemberg asked the court togrant an injunction restraining from constructing and49 Ibid. pp. 253-254 & 120.50 Ibid. pp. 217-221.51 Ibid. Also see the text in Annual Digest of Public International LawCases, (1927) p. 128.maintaining certain works (Baden and Prussia), and to instructBaden to remove the natural obstacles, which accumulate in thebed, and on the banks of the river in order to ensure anunimpeded flow of water.The German Supreme Court held that Baden must refrain fromcausing an increase in the natural sinking of the waters of theDanube due to its artificial works and by the accumulation ofsand and gravel in the bed of the river. And Wurrttemberg wasrequired to refrain from decreasing the natural sinking ofDanube waters due to certain works and artificial damming ofavenues of sinking. The court also held that while sovereignstates (or members of a federal state) are using waters of theirterritory, they must bear in mind that it should not cause anyharm or injury to other states and the interest of each state mustbe weighed in an equitable manner against the interest ofothers. The case dealt with a unique natural phenomenon. Italso held the view that the disputant provinces must respect theequitable and reasonable share of every province. McCaffreyhas highlighted the significance of the case by saying:"even for a case between two states of afederation, the Staatsgerichtshof’s analysis, andthe principles it applied, are remarkably advancedfrom the period in which judgement was rendered.… the rules it applied are generally consonantwith those contained in the 1997 UN Convention,especially those of equitable utilisation and theobligation to prevent significant harm." 52In fact, the German case is the earliest groundwater case whichexplicitly enunciated the principles of equitable utilisation, noharm rule and due diligence by applying the rules ofinternational law as if it were a case between the two sovereignnations. 53 The significance of procedural issues such as52 Supra note 2 p. 220.53 J. G. Lammers, The Pollution of International Watercourses, TheHague: Martinus Nijhoff Pub., 1984, p. 433.