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

38 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 39"Persia should not possess land on the right bank ofthe Helmand. It appears therefore beyond doubtindispensable that both banks of the Helmand abovethe Kohak band be given up to Afghanistan. Themain bed of the Helmand therefore below Kohakshould be the eastern boundary of Persian Seistan. Itis moreover to be well understood that no works areto be carried out on either side calculated to interferewith the requisite supply of water for irrigation on thebanks of Helmand”. 58This is an early decision that has contributed to the fairallocation of waters from the shared river to each riparian state.It has, therefore, clearly underlined the following concept:whilst using your share of waters you must take into accountthe interest of other riparian states, and in doing so, anydetrimental affect with or without malicious intention isforbidden. Thus this decision has been regarded as one of thefoundations of equitable utilisation.In 1902, a second dispute was submitted to ColonelMacMohan, asking what amount of water fairly represented arequisite supply for irrigation provided on behalf of Persia bythe award of 1872. The mission in Seistan had been created inorder to determine the requisite supply for Persian needs and itwas stated that one third of the water which reached Seistanwould suffice for irrigation in Persian Seistan, leaving the samesupply for the Afghan requirement as well. 59The award contained eight clauses. Two clauses, viz., clauses Iand VII, are particularly relevant:"Clause I- No irrigation works are to be carriedout on either side calculated to interfere with therequisite supply of water for irrigation on bothbanks of the river, but both sides have the right,58 Ibid. p. 233.59 Ibid. p. 234.within their own territories, to maintain existingcanals, to open out old or disused canals, and tomake new canals, from the Helmand River,provided that the supply of water requisite forirrigation on both sides is not diminished.Clause VII: It will be noted that the rights to theHelmand River, which its geographical positionnaturally gives to Afghanistan as owner of theupper-Helmand, have been restricted to the extentstated in favour of Persia in accordance with SirFrederick Goldsmid's award. It follows, therefore,that Persia has not the right to alienate to anyother power the water rights thus acquiredwithout the consent of Afghanistan." 60The earlier judgement, namely the Goldsmid verdict of 1872,was supported by a later one. The award rejected the notion ofinterference in the other party's utilisation of water andsupported each share of water for its own beneficial use withoutdistorting the other. In the later case of 1905, Col. MacMohanfound that Persia was causing detrimental effects onAfghanistan’s share of the waters and declared Persia’s actionillegal. However, Persia (Iran) has never accepted thejudgement.2.4.2 Trail Smelter Case, US-CanadaAt Trail, located in British Columbia, Canada, seven milesaway from the American border, there was a large stock of leadsmelters and mines being excavated by a company. During thesmelting process, the sulphur dioxide fumes were carried overthe border and caused damage to crops and vegetation on USterritory. The citizens of Washington State, due to lack of alegal remedy within their territory because of the fact that theair pollution was caused by an act in Canadian territory, asked60 Ibid.