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

46 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 47not in the idea of a right of passage in favour ofupstream States, but in that of a community ofinterest of riparian States. This community ofinterest in a navigable river becomes the basis of acommon legal right, the essential features of whichare the perfect equality of all riparian States in theuse of the whole course of the river and theexclusion of any preferential privilege of anyriparian State in relation to others. The jurisdictionof the Commission extends up to the points atwhich the Warthe (Wartha) and the Netze (Notec)cease to be either naturally navigable or navigableby means of lateral channels or canals whichduplicate or improve naturally navigable sectionsor connect two naturally navigable sections to thesame river”. 75The implications of this judgement are far reaching for sharedwatercourses, e.g., a watercourse that flows from the territoryof a state or states is common property to all riparian states andshould be treated in such a way that each use does not impairothers entitlement. The idea of ‘community of interest’ hasbeen regarded as an origin of the equitable utilisation principles- main pillars of the rules of IWC. In other words, this principlehas a dominating role in the development of IWL and practiceof states largely depends on it. Thus, the submission of Polandwas refused and the other contestant states’ contentions wereupheld in the judgement. For example a state cannot regard ariver that flows within its territory as entirely its own resource.Rather, it equally belongs to the other riparian as well and insuch shared resources 'community of interest' prevails. Thisjudgment along with Diversion of the Waters of the Meuse andNorth Sea Continental Shelf cases has remained important even75 Ibid.today, as it was quoted by ICJ in the 1997 judgement of theGavcikovo-Nagymaros case, (which is addressed below). 762.5.2 The Diversion of Water from the Meuse 1937,Belgium v. the NetherlandsThe River Meuse originates in northern France and flowsthrough Belgium and the Netherlands into the North Sea, whereit forms a common delta with the Rhine. The Netherlands andBelgium concluded a treaty in 1863 relating to the regimediverting water from the Meuse for the feeding of navigationcanals and irrigation channels. In 1925, the two statesconcluded a new treaty in order to settle all differencesconcerning the enlargement and construction of new canals.The Netherlands and Belgium started works on the diversion ofwater from the Meuse. 77Both states objected to the work carried out by the other, i.e.,the diversion works for irrigation and navigation channels. As aresult, the Netherlands submitted a case to the court requestingit to declare such works illegal and against the provisions of the1863 treaty.The court rejected both claims, confining itself exclusively toan interpretation of the said treaty. However, it strictlymaintained the basic principle of equal treatment of states aswell as the reciprocity of the rights and duties of the parties in ashared watercourse. 7876 37 ILM (1998), p. 162-202; Caflisch has regarded this case as a‘grandmother of all cases’ relating to the dispute on sharedwatercourse, also see; C. Caflisch, “Judicial Means for Settling WaterDisputes” in PCA (ed), Resolution of International Water Disputes,the Hague: Kluwer Law, 2003, p. 239.77 Supra note 57, p. 229-230; see supra note 35, p. 187-88; also seeThirteenth Annual Reports of the Permanent Court of InternationalCourt of Justice, Series E. No 13, (1937) pp. 135-141.78 Supra note 36, PCIJ Decision on Meuse Diversion Case, (1937), pp.187-88.