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

52 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 53World Bank), Lilenthal, Schwebel and Bourne have madesignificant contributions in the development of this subject. 87Contribution was made by Black and Lilenthal to the successfulnegotiation that yielded the conclusion of the Indus treaty 1960between India and Pakistan, resolving a dispute which hadthreatened the peace and security not only of south Asia butalso the entire globe. The treaty was made possible by theirinstitutions and personal involvement as well. 88Chauhan has argued, as an early jurist in the subject, the workof Schulthess, a Swiss Publicist, written in German, is worthmentioning as the first work in this regard. In the Englishlanguage, the earliest contribution (book) was made by Smithwhich is The Economic Use of International Rivers 1931. 89Chauhan further contended that Berber, Gieseke, Jaeger,Caponera and himself are well-known writers and jurists on thesubject. He quoted Berber as saying that “internationalagreements are the best and most suitable means of settlementof IWL disputes.” 90Although learned experts have not been unanimous in theirviews pertaining to the rules of IWC, the majority are of theview that the reasonable and equitable utilisation approach isthe major rule of the area. It must be borne in mind that theapplication of the principles could be different in view of thesocio-economic, technical, legal, geographical and politicalcircumstances. This does not mean, however, that the norms orprinciples should different. For example, a upstream country Acould divert a significant quantum of the waters of a river inorder to fulfil the food demand of millions of people living in it87 Most of them made their contribution through their writings on thesubject and through the Institute of international Law, the adoption ofthe Helsinki rules and in the resolution of the Indus river treatybetween India and Pakistan.88 A. K. Biswas, "Indus Water Treaty: the Negotiating process" (1992) in17 WI, p. 209.89 Supra note 22, pp. 61-63.90 Ibid.though it might curtail the recreational use of a downstreamstate B, but the same amount of water extraction from an IWCcould be denied in similar circumstances, if it hampered thedrinking water source of millions of people in State B, (even ifit were beneficial to an upstream state A). The reason forhaving no consensus on reasonable and equitable utilisation isits vagueness, lack of precise definition and different use indifferent situations. As a result, there has always been aprofound division of views, while different state practices haveemerged and different solutions on the issues have beenprovided. Nonetheless, the most respected and recognisednorms have been developed with regard to reasonable andequitable utilisation. This fact has been confirmed by theUNCIW, the judgement of Gabcikovo-Nagymaros case by theICJ 91 and other state practices.International watercourses are regulated by IWL. For states, asmembers of the international community and subject tointernational law, 92 their behaviour regarding the use andsharing of IWC has determined several practices in the arena.The best practices, which equally address their commoninterests based on equity and fairness, are largely appreciated inthe international arena. As a result, these practices havereceived unanimous acceptance and are largely followed byothers states. Basically, the undisputed, well-recognised, andreasonable exercises of states could later take the form ofcustomary international law. 93 Nonetheless, it could beasserted that such practices should be addressed in a mannerthat is not so contentious that states would be reluctant to adoptit. 9491 37 ILM (1998), pp. 162-202.92 Wimbledon case, PCIJ Reports, series A. No 1-7, p. 25.93 A. Elizabeth Roberts, "Traditional and Modern Approach toCustomary International Law: A Reconciliation” (2001) in 95 AJIL,pp. 757-791.94 J. Patrick Kelley, “The Twilight of Customary International Law”(2000) in 40 VJIL, pp. 451-457.