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

More documents

Recommendations

Info

60 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 61water between a mighty and weak neighbour whereby the treatyensured Mexico’s reasonable and equitable share.2.7. 3 The Nile River Treaty, 1929 & 1959 Egypt-SudanThe first treaty safeguarded Egypt's existing and historic rightsand gave all of the benefits to her, neglecting Sudan and sevenother upper riparian states’ legitimate rights over the waters ofNile. Although, this earlier treaty was concluded under theBritish colonial regime both in Egypt and Sudan, it protectedEgypt’s interest at Sudan's cost over the shared water resources.The most striking issue in both treaties is that although there arenine riparian states within the Nile watercourses, the treaty wasconcluded only between two co-riparians. 109 After thedecolonisation of Sudan, she rejected outright the earlier treatystating that it had been made by an alien power, not by thelegitimate representatives of Sudan. As a result, a new treatywas concluded. This treaty protected some interests of Sudan,which had not been covered by the earlier one. However, it stillrecognised the historic rights of Egypt. The main features of thearrangement involve sharing on the basis of the volume ofwater, whereby Sudan received 4 billion cubic metres (CM),and Egypt 48 billion CM.The case of the Nile River is extreme in IWL. The fact is thatEgypt did not contribute any waters from her territory. UnlikeEgypt, Ethiopia which contributes most of the waters in BlueNile, the main tributary of the Nile has been prohibited fromutilising the Blue Nile waters even within her own territory. 110Egypt has been continuously using these waters since timesdating back to the ancient Nile civilisations. In the givencircumstances, utilisation of the waters by the upper riparianstates could be a severe blow to Egypt and she had already109 Supra note 36, p. 65.110 T. Naff & R. C. Matson, Water in Middle East: Conflict or Cooperation,Colorado: Westview Press, 1984, pp. 1-16.declared that such utilisation would not be acceptable to her. 111Moreover, Egypt had declared that to deprive her of thesewater rights was to prepare for war with her. 112 In this treaty,the principle of no harm and Egypt's prior appropriation hasbeen heavily advocated and the principle of equitableutilisation has been largely ignored.The fact is that Egypt managed to develop a huge network ofirrigation canals through a gigantic barrage in order to useevery drop of water of the Nile. As the western governmentsand the World Bank refused to finance this work because ofthe riparian issues, the then Soviet Union assisted technicallyas well as financially in order to carry out such a grandioseproject, ignoring the interest of other eight riparians in the Nilewaters. Ethiopia and others are not able to use this water,despite the fact that they are entitled to their share of it,because international assistance is required in order to developany project with no objection from other riparians includingEgypt, which naturally would object to the proposal on thegrounds of historic use. 113 In this circumstance, the principleof equitable utilisation has been subordinated to the no harmrule, which is being advocated by Egypt. However, recentlyEgypt and her upstream states have been working together toachieve a fair, just and equitable utilisation of these waters111 S. E. Smith & Hussein M. Rawly, "The Blue Nile: Potential forConflict and Alternatives for Meeting Future Demand" (1990) in 15WI, p. 220.112 N. Kliot, Water Resources and Conflict in the Middle East, London:Routledge, 1994, p. 68.113 A. H. Garretson, “The Nile Basin”, in A. Garreston et al (eds), TheLaw of International Drainage Basins, New York: Oceana Pub., 1967,pp. 275: The World Bank and the western government refused toprovide loans and other assistance in developing the Aswan dam in1965. It was because the riparian issue was not resolved.
62 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 63with the World Bank (WB), United Nations DevelopmentProgramme and other bilateral donors assisting these efforts. 1142.7.4 The Indus Water Allocation Treaty, 1960 India-PakistanThis dispute was inherited from the time of unified India.However, the Indus treaty was concluded between the tworival states after the conflict over the consumptive use of waterof the Indus basin. This treaty was to resolve the problemscreated after the temporary interruption of water to Pakistanafter the partition of India. The main elements of theagreement were: 115 All the waters of the eastern rivers, theSultej, Beas, and the Ravi are made available for theunrestricted use of India and the western rivers the Indus,Jhelum and Chenab are made available for the unrestricted useof Pakistan.The canal structures had fallen in Indian Territory leavingPakistan without such an irrigation network. In order to enablePakistan to construct a huge irrigation network, Indiacontributed £ 62,000,000 and a substantial amount of moneywas provided from the World Bank, USA, UK, Germany andAustralia to construct facilities inside Pakistan. The principlesadopted to settle this complex dispute, i.e. reasonable andequitable utilisation of the waters, to the satisfaction of bothstates, has major significance in the development of this areaand the preservation of peace and security. However, actualallocations of the waters were 80 % to Pakistan and 20 % toIndia. It was not an equal but equitable division, and it has beenseverely criticised in India on the ground of inequality andfavour to Pakistan. 116 From the viewpoint of needs (Pakistan’shuge population relying on the waters of these rivers) and prioruse (Pakistan’s use was greater than India) and the otherconsiderations spelled out in Article 6 of the UNCIW, thisdivision of the rivers has been regarded as equitable. The ruleof equitable utilisation dictated this resolution. It is worthmentioning that the treaty refused to take account of the‘drainage basin’ or ‘watercourse’ concept considering thewhole Indus a unit. Rather the rivers were divided between twostates. In recent months, in Jammu and Kashmir, an Indian statelegislature adopted a proposal to repudiate the treaty and askedthe federal government to negotiate it again, safeguardingIndian interests which were ignored earlier. 117 However, theresolution is regarded as one of the praiseworthy assignmentscarried out by the World Bank in such a complex water issue.2.7. 5 The Columbia River Treaty, 1961 USA-CanadaThe treaty primarily covered power development and floodcontrol aspects of the Columbia River Basin. Of the principlesestablished by this treaty, 118 some of them are regarded as thebasic foundation of IWL in regard to the co-operative and jointdevelopment of a shared river for mutual benefit. However, it isstated in the treaty that it would not be construed a precedent ora general principle of law. Rather, they thought that thesespecial arrangements cover the peculiar circumstances in theColumbia River basin between the two states.In spite of the above, this treaty succeeded in enunciating somemilestone principles, norms and criteria for the equitable andreasonable utilisation of IWC. Particularly, the idea ofdownstream benefits was first developed and recognised, costs114 J. Brunnee & S. J. Toope, “The Changing Nile Basin Regime: DoesLaw Matter ?” (2002) in 42 HILJ, pp. 105-159.115 419 UNTS, p. 100; also see R. K. Baxter, "The Indus Basin" in A.Garretson, et. al (eds), The Law of International Drainage Basins, NewYork: Oceana Pub., 1967, pp. 443-478.116 Supra note 22, pp. 280-285.117 Supra note 41, p. 3.118 Supra note 36, pp. 76-78; also see C. B. Bourne, “The Columbia RiverControversy” (1959) in 37 CBR, pp. 444-472. Generally, the benefitsaccrued from the works upstream are called ‘downstream benefits’.
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
Page 8 and 9: ADBAJILAus.JILAYBLADPILALCCASEANAGO
Page 10 and 11: GlossaryMap of the Ganges BasinThe
Page 12 and 13: Chapter- ThreeEquitable Utilisation
Page 14 and 15: Introduction / 1 2 / International
Page 20 and 21: Introduction / 13 14 / Internationa
Page 22 and 23: 16 / International Watercourses Law
Page 64 and 65: 100 / International Watercourses La
Page 66 and 67: Equitable Utilisation / 103 104 / I
Page 94 and 95:
Equitable Utilisation / 159 160 / I
Page 96 and 97:
Page 98 and 99:
Page 100 and 101:
Page 102 and 103:
Page 104 and 105:
Article 6 of the Rio Declaration as
Page 106 and 107:
182 / International Watercourses La
Page 108 and 109:
Page 110 and 111:
Page 112 and 113:
Page 114 and 115:
Page 116 and 117:
Page 118 and 119:
Page 120 and 121:
Page 122 and 123:
Page 124 and 125:
Page 126 and 127:
Page 128 and 129:
Page 130 and 131:
Page 132 and 133:
Page 134 and 135:
Page 136 and 137:
Page 138 and 139:
Page 140 and 141:
Page 142 and 143:
Page 144 and 145:
Legality River Linking Project / 25
Page 146 and 147:
Page 148 and 149:
Page 150 and 151:
Page 152 and 153:
Page 154 and 155:
the USA to construct such a huge pr
Page 156 and 157:
Page 158 and 159:
Page 160 and 161:
Page 162 and 163:
Page 164 and 165:
Page 166 and 167:
Page 168 and 169:
Page 170 and 171:
Page 172 and 173:
Page 174 and 175:
Page 176 and 177:
Page 178 and 179:
Page 180 and 181:
Page 182 and 183:
Page 184 and 185:
Page 186 and 187:
Page 188 and 189:
Page 190 and 191:
Page 192 and 193:
Page 194 and 195:
Page 196 and 197:
Page 198 and 199:
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?