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40 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 41the US Government to initiate proceedings against suchharmful activity and to seek compensation for whateverdamage had already occurred. The United States and CanadianGovernments signed a convention in Ottawa in 1935 andconstituted an arbitral tribunal accordingly. 61 The tribunalrendered its decision in 1938 and 1941:"Under the principles of international law, … nostate has the right to use or permit the use of itsterritory in such a manner as to cause injury byfumes in or to the territory or another or theproperties or persons therein, when the case is ofserious consequence and the injury is establishedby clear and convincing evidence." 62Canada was held responsible in international law for theconduct of the Trail smelter. Therefore, the Trail smelter wasrequired to refrain from causing any harm through fumespassing over the state of Washington. While this case has nodirect relation to the subject of this research, the decision, hasfar reaching implications in the development of internationallaw as a whole and especially modern internationalenvironmental law. 63 This principle is largely complied with,followed and appreciated by the international community. As aresult of such recognition the Trial Smelter principles havebecome a significant part of customary rules of internationallaw. 64 This decision is cited in many national and internationalcases, state practices and writings. The maxim sic utre tuo,propounded for the first time in this case, has been followed inmany cases including the Lake Lanoux and Corfu Channel,quoting the concept of 'use your own resources without61 Supra note 36, pp. 192-194; also see 35 AJIL (1941) pp. 684-716.62 Supra note 57, p. 244.63 Supra note 56.64 35 AJIL (1941) pp. 684-716.affecting others.' 65 It should be understood that this judgementhas an explicit link with the 'no harm rule', stipulated in Article7 of the 1997 UNCIW, Article 21 of the UN Conference on theHuman Environment, 1972 66 and Article 2 of the UNConference on Environment and Development, 1992. 67 Theseare the basic foundations for no harm rules. For the purpose ofthis book, use of waters in an IWC is the right of riparian stateswith the obligation of prohibition of any harm to otherwatercourse states. In the event of any harm to the otherriparian, such harm must be mitigated, averted or eliminated.Furthermore, this is the foundation stone for the concept ofextraterritorial water pollution, no harm rule and environmentallaw.2.4.3 Lake Lanoux Case, 1957 France - SpainThis case is more significant than the earlier cases in relation tothe development of IWL, due to the fact it is explicitly relatedto the allocation and sharing of fresh waters in an IWC. 68 Thecase was decided by an arbitral tribunal constituted by theparties according to their Arbitration Treaty of 1929. Bothstates signed a Compromise in 1956. 69The outlet of Lake Lanoux in the eastern Pyrenees of Franceflows into the Carol River. In order to generate hydropower,France proposed to divert the Lake Lanoux waters over amountain drop into the Friege River in France and later thesame quantum of water was to drain into the Carol River. Spainobjected to the diversion of the waters, contending that it would65 C. B. Bourne, "The Development of International Water Resources:The Drainage Basin Approach" (1969) in 47 CBR, pp. 72-76.66 P. W. Birnie & A. E. Boyle, Basic Documents on International Lawand the Environment, New York: Oxford University, 1996, pp.1-8.67 Ibid. pp. 9-1468 R. Bernhard (ed), Encyclopaedia of Public International Law:Decision of International Courts and Tribunal and InternationalArbitration, the Hague: North-Holland Company, 1981, pp. 166-167.69 24 ILR (1961), p. 101; also see 53 AJIL (1959), p. 156.
42 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 43have an adverse effect in its territory. The arbitral tribunal heldthat the proposed diversion would not violate the treaty becausethere would be no net alteration to the flow of the Carol River."…the tribunal expressed its view that underexisting customary international law co-riparianstates are equally entitled to reasonable use of thewaters from an international drainage basin andits view regarding a co-riparian consent;…that there exists a principle prohibiting theupstream state from changing the waters of a riverin their natural condition to the serious injury of adownstream state. Such principle cannot beapplied to the present case because the tribunalhas established, in regard to the first questionexamined above, that the French project does notalter the waters of Carol." 70Therefore, Spain was only entitled to the adoption by France ofmeasures ensuring the reasonable protection of Spain’s interest.When one examines the question of whether France, either incourse of dealing or in her proposals has taken the Spanishinterest into sufficient consideration, it must be stressed howclosely linked together are the obligations to take intoconsideration the violation of interests in the course ofnegotiation, and the obligation to give reasonable place to thoseinterests in the adopted solution. A state that has conductednegotiations in good faith in accordance with Article II of theAdditional Act is not excused from giving a reasonable place toadverse interest in the solution it adopts, even if negotiationshad been interrupted owing to the intransigence of its partner. 71The significant aspect of the judgement is the clear andunequivocal answer to Spain’s assertion as to “whether Francemust have her consent before initiation of the project according70 Supra note 68, p. 167.71 Ibid.to the customary international law.” 72 The ruling said no; thereis no provision in customary international law that an upstreamcountry is compelled to have consent from her downstreamneighbour before initiating a water project. It can be argued thathad not this point been made clear by the tribunal, there wouldbe the danger of the downstream state having a veto over thematter. In the event of such a ruling, equitable entitlement ofthe upstream state could be jeopardised.Thus, from the analysis of the judgement, a number ofsubstantive principles have emerged. It appears that adownstream state has no veto power to stop or object to anyproject in the upstream state unless it inflicts substantial orserious or significant adverse effects. Therefore, it is a duty ofthe state that is proposing to develop a project to consult andnegotiate with its co-riparian state in order to identify whetherany adverse affect may be inflicted by such work and to ensurethe equitable utilisation of such shared watercourses. It is,therefore, a milestone judgement that has far-reachingimplications in IWL.2.4.4 Gut Dam Case 1968, Canada v. USAThe St. Lawrence River is one of the principal rivers in NorthAmerica and the main outlet for the Great Lakes. Lake Ontariois situated between Canada and the United States. It receivesthe drainage of the entire Great Lakes system through theNiagara River and discharges into the St. Lawrence River. Withthe consent of the US, Canada constructed a dam betweenAdams Island in Canadian territory and Les Gallops Island ofUS territory in St. Lawrence River in order to improvenavigation. However, a condition of this consent was not tocause any adverse effect in US territory or to its citizens. Incase of such impact, Canada had agreed to pay compensation72 24 ILR (1961), pp. 101-105. This “consent in case of harm” principlewas not recognised in the 1929 Treaty between Norway and Swedenwhich has been evaluated later below.
Page 2 and 3: International WatercoursesLaw and I
Page 4 and 5: PrefaceIn this book, the author has
Page 6 and 7: International Treaties and other Do
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Page 10 and 11: GlossaryMap of the Ganges BasinThe
Page 12 and 13: Chapter- ThreeEquitable Utilisation
Page 14 and 15: Introduction / 1 2 / International
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