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

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PrefaceIn this book, the author has attempted to present a comprehensivereview of the evolution of water law over the centuries. While doing so, theauthor has also attempted to outline the positive and negative aspects of theinternational treaties on boundary and transboundary rivers around theworld.Like any international law in general, the one covering water sectoralso constitutes mainly the State practices, judicial pronouncements,international coventions and scholarly writings. In this book, the author hascited a profusion of examples of water disputes across the world and theways they were attempted to resolve. The author, after doing a criticalanalysis of the four doctrines of international water law, viz. territorialsovereignty, territorial integrity, prior appropriation and equitableutilization, has considered the last doctrine as the best, one, for it has wideracceptance among the international community. The author seems to be anardent supporter of the principle of equitable utilization, because he hasemphasized in a number of places in the book that the principle would helpserve the interests of the riparian States and resolve their disputes in areconciliatory manner.The book also elaborates the water availability and its potential uses inSouth Asia for the economic development and environmental sustainabilityof the region. It attempts to outline the problems and suggest the equitableutilization of rivers as solutions to them.The concept of equity and the emerging concept of equitable utilizationin shared natural resources have been dealt with at length, citing judicatureof the International Court of Justice. The readers will get an opportunity tobe acquainted with numerous international treaties on water sharing that aresaid to be based on the principle of equitable utilization.The oft-quoted Columbia River Treaty between the USA and Canadais believed to be ideally based on the principle of equitable utilization. Inthis book, this treaty is broadly suggested as an ideal point of reference fortreaty on shared watercourses based on the principle of equitable utilization.However, it is important to note that the concerned riparian States tookdecades to reach an agreement on the Columbia River water sharing. Thetreaty was not signed overnight.Helsinki Rules are believed to be the basis for principle of equitableutilization. The rules state- "each basin State in entitled within its territory toget reasonable and equitable share in the benefical uses of the water oninternational drainage basin". However, it has not been easy to determinethe reasonable and equitable share from the viewpoint of various relevantfactors and is also not possible to formulate a general rule to assign weightsto these relevant factors.Equitable utilization of resource is based on equity, i.e., fairness,faithfulness and norms of distributive justice, and the interest of everyriparian State is taken into consideration. The author has recommended theprinciple of equitable utilization to be the most ideal rule for rivers of Nepalthat flows across India and Bangladesh. Although equitable utilization isarguably the best approach to achieve justice in sharing a watercourse and ispossibly the best possible means for resolving the conflicts, the question asto "how to make the principle operational" remains unanswered, and it willbe asking too much to expect an answer from the book.Nepal, as a co-riparian State, has border rivers and also trans-boundaryrivers. A regional or sub-regional treaty on sharing water is not yet inexistence. Nonetheless, we have the experience of entering into bilateralagreements on one border river and two transboundary rivers. So far asequitable utilization is concerned, agreements on trans-boundary riversnamely Koshi and Gandak Agreements in no way illustrate the principle ofequitable utilization, whereas the agreement of border river, namelyMahakali Treaty, reflects the principle of equitable distribution to a greaterextent. However, it is important to note that the Mahakali Treaty hasascertained the equitable sharing only for the water that will be augmentedfrom the development of Pancheswore Multipurpose Project and not for thenatural flow of the river. This is owing to the integration of SardaAgreement in Mahakali Treaty. Nevertheless, Mahakali Treaty could be theframework treaty for the equitable sharing of water of border rivers, ifimplemented with good faith and sincerity.Nepal without a delay needs to develop its strategy and framework forthe equitable sharing of watercourses. In doing so, she should adoptdifferent approaches for border rivers and trans-boundary rivers. Althoughthe book is comprehensive on principle of equitable sharing, it has yet toaddress the issues adequately in the context of Nepal and her rivers.The legal aspect of India's River Linking Project has been discussed inthe book in terms of her national and international dimensions both asthreats and opportunities to the smaller neighbouring countries. The bookgives quite an insight on the project for those interested in the region's waterresources.All in all, it is a very comprehensive work dealing with water issuesfrom the naitonal, regional and global standpoints. The book givessignificant information on Nepal's position on water resources. The bookseems to have a number of repetitions of some of the issues, which perhapswill be done away with in the later editions.25 December 2005-12-25 (Mahendra Nath Aryal)SecretaryXVII XVIII
PrefaceSouth Asia has been remain one of the poorest area of the worlddespite the fact that immense water resource available here has notbeen fully used for the beneficial use of countries of this area. Ithas been identified that utilisation of these resources for thepoverty alleviation, infrastructure development and also for thelivelihood of people is of utmost required. However, even in thiscircumstance states are not moving forward to end their suspicion,bitterness and move ahead for the end of this cause by this means.This book has critically analysed the root cause of different viewsand stands of these nations and demonstrates how states in anotherpart of the world have been able to settle their divergent views andutilised shared waters for their mutual benefits. In doing so,evaluation of the law and practice developed so far has been madeand how such law can be applied in south Asia has beenrecommended. Basically, critical analysis of international waterlaw and its application in south Asia is the major objective of thisbook.Fresh water is an indispensable part of the hydrosphere and theterrestrial system. Water is a finite resource for which there is nosubstitute; its total volume cannot be increased and no living thingcan exist without it. Global water usage is becoming unsustainableat present levels, which are still rapidly increasing due to theworld’s swelling population, and per capita usage that isincreasing with prosperity. The other issue of great concern is theuneven availability and unsustainable use of water, exacerbated byproblems such as pollution, deforestation and desertification.Indo-Nepalese water relations are used as a case study.To date, most problems associated with water use and itsallocation have been resolved through negotiations, agreements,and judicial pronouncements, assisted by experts in this field, andby reference to international customs and state practices. Althoughsome of these practices – those which are unanimously recognisedby the international community – have taken the shape ofcustomary international law, many related issues still remaincontentious, particularly in the developing world. There is still noone authority able to agree a universal definition ofequity/equitable utilisation and how this is to be reconciled withthe ‘no harm’ rule, and in the meantime, state practice has led to avariety of resolutions.The notion of equity is generally agreed to imply that nationsrepresenting the weak, poor and vulnerable should receivepreferential treatment by means of concessions made by the richernations and even by the richer developing state. This concept iswell exemplified by the Millennium Development Goal and DebtRelief Programmes, amongst other measures. The problems ofvulnerable countries such as Nepal must be overcome in aconstructive, effective and prudent manner, by means of greaterinternational co-operation based on the elements of equity, andrequiring a reversal of the present policies of the World Bank andthe richest industrial nations. This book has shown that the rule ofequitable utilisation provides the ability to resolve conflicts in awin-win manner, including in the Indo-Nepalese context.There are very many people who have significantly contributed tothis studies but it is not possible to mention all of them. However,my wife Mrs Puspa Devi Upreti has provided me source offunding, inspiration and needful help in completing my PhD in theUnited Kingdom and the book is based on these four years hardwork. Professor S. P. Subedi, Dr Chris Waters, Dr Duncan French,and Mr Damodar Bhattarai contribution in this undertaking shouldbe acknowledged. If this book contribute, even little, in creatingconducive environment for making broader consensus amongnations of south Asia and to the academic circle in their betterunderstanding about this complex area, the author would considerthat the effort has been succeeded.In spite of my sincere effort there could be lacking andshortcoming and any comment and criticism in this regards will beheartily welcomed.23 December, 2005 - Dr. Trilochan UpretiXVII XVIII
Page 2 and 3: International WatercoursesLaw and I
Page 6 and 7: International Treaties and other Do
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