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

50 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 51“it is not only a shared international watercourse butalso an international boundary river, from whichpresently Hungary is deprived of its benefits andSlovakia is using between 80 and 90 percent of thewaters of the Danube before returning them to themain bed of the river, despite the fact the Danube isnot only a shared international watercourse but alsoan international boundary river.” 84The way, in which Hungary is deprived from these benefits bySlovakia putting the ‘Variant C’ (a provisional solution adoptedby Slovakia) into operation, is incompatible with the treatyprovisions. As a result, both states’ actions are illegal, and bothstates are obligated to pay compensation to the other for theinjury incurred by each action to the other and both of them arerequired to negotiate and execute the provisions of the 1977treaty in a good faith, reasonable and equitable manner. 85In summary, the judgement provided that the reasonable andequitable utilisation of an IWC is the basic requirement. Thenotion of equity, which bridges the gap between the divergentinterests, is the major rule of shared water resources and thedispute in question should be dealt with accordingly. Treatyarrangements should be implemented in good faith with theobjectives set forth in it. In doing so, there are several rightscorresponding to a duty to inform and negotiate about theproposed project, follow to the concept of ‘no harm’ and‘equitable utilisation’, and always maintain goodneighbourliness, and a cooperative attitude. Apart from this,consideration of the watercourse as a single unit and thegenuine interest of attainment to maximize benefits from such aproject for the mutual benefit of all riparian states are alsonecessary conditions.84 Ibid. Para 78, p 190.85 Ibid. pp. 198- 202.To conclude this section, states have rights in an IWC. At thesame time they are obligated to use their right with restraint,that is to say, to cause harm or injury is not permitted. Thestates in an IWC are required to consult, negotiate and cooperatewith each other and work in a co-ordinated manner byaddressing each other’s interest and maximising the benefits.Furthermore, the Gavcikovo-Nagymaraos judgement providesinsight into the significance of such co-operation. There havebeen varying state practices in this area. In the Nile basin, forexample, both treaties of 1929 and 1959 safeguarded the prioror historical or vested right of Egypt over the Nile’s water,which in essence advocated the ‘no harm rule’, against theconcept of equitable utilisation. In other treaty regimes, like thetreaty between Canada and USA, Mexico and USA, and severalothers have maintained the cardinal rule of IWC as ‘equitableutilisation’. However, from the evaluation of each practiceenvisaged in those treaties, the majority of such regimes haveemphasised the concept of reasonable and equitable utilisation,no harm to the other state and duty to cooperate and negotiate.2.6 Scholarly ContributionsAccording to article 38 (1) (d) of the statute of the Statute ofICJ,“subject to the provisions of article 59, judicialdecisions and the teachings of the most highlyqualified publicists are regarded as subsidiarymeans for the determination of rules of law.” 86The contributions of the ILI, ILA, Inter-American BarAssociation (IBA) etc, are naturally the contributions ofnumerous scholars which is dealt with later. It is not possible toevaluate every individual’s contribution here. However,eminent scholars such as Oppenheim, Lauterpacht, Smith,Berber, Andrassy, Goldsmid, Black, (then president of the86 Supra note 54, p. 1075.