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

56 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 57state, introduce into a watercourse of an international character,for industrial or agricultural exploitation of their waters, anyalteration which may prove injurious to the other state. 101 Theconference further restricted works of industrial or agriculturalexploitation, which resulted in injury to the free navigationthereof, irrespective of the nature of the river, whethersuccessive or contiguous. This conference had endorsed theconcept that the state must be restrained from inflicting anyharm to the other riparian when it is utilising its own portion ofwater in an IWC.The Madrid Declaration 1911, a resolution of the Institute ofInternational Law (ILI), an unofficial body whose declarationsare not legally binding but could constitute ‘soft law’ in thearea, affirmed the physical interdependence of riparian states insuch a way as to exclude a regime from complete autonomy onthe part of any state in the exploitation of water resources. 102The rules explicitly prohibit that in the boundary water, anystate may, without the consent of the other, and without aspecial and valid legal title, make or allow any alteration. If it isdetrimental to the bank of the other state and, in the case ofsuccessive water, all alterations injurious to the water areillegal. Moreover, international resolutions adopted by severalinstitutions (ILI, ILA etc), even though they bear no direct legalsanction, provide that the states in an IWC cannot use the101 Ibid. pp. 203-205.102 Ibid. p. 274, Article II of the International Regulation regarding the useof International Watercourses for Purposes other than navigation,(Declaration of Madrid 1911): “I. The point where this stream crossesthe frontiers of two states, whether naturally, or since timeimmemorial, may not be changed by establishment of one of the stateswithout the consent of the other. II. All alteration injurious to thewater, the emptying therein of injurious matter (from factories, etc) isforbidden; III. No establishment (especially factories, etc) is forbidden;III No establishment (especially factories utilising hydraulic power)may take so much may take so much water that the constitution,otherwise called the utilizable or essential character of the stream shall,when it reaches the territory downstream, be seriously modified.”waters by ignoring others’ rights to it. However, this does notmean that states are prohibited to utilise their common sharedresources. They must acknowledge a duty to refrain fromcausing any detrimental effects. Each co-riparian is entitled to areasonable and equitable share in the beneficial uses of thewaters. In order to examine the fundamental rules on the areathat were developing from state practice, it is imperative toevaluate some landmark treaties.The above section demonstrates that in bilateral as well asmultilateral practice, states are entitled to use successive as wellas contiguous river water in such a way that the right over thewaters corresponds with the obligation that such use should notcause injury or harm in any way. If harm and injury werecaused, such harm or injury ought to be averted, mitigated, andeliminated. Alternatively, reparation could be one of theoptions in such a circumstance. In fact, these instruments laidthe ground for the further development and codification of thisarea.2.7.1 Boundary Water Treaty 1909 USA-CanadaOutstanding disputes in North America over the sharing andallocation of waters and benefits therefrom were resolvedthrough the conclusion of this treaty between USA and Canada.The most fundamental provisions of the treaty are as follows: 103An agreement over the use of boundary waters was made inorder to develop them for mutual benefit. Both states reservetheir exclusive jurisdiction and control over the waters withintheir territory. An International Joint Commission (IJC) wasestablished, which is responsible for facilitating mutualunderstandings for the overall implementation of the treaty.Equal and equitable rights on the boundary waters are providedto each state. Special arrangements were made for theapportionment of the Niagara River on a different basis.103 Supra note 36, pp. 72-74.