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

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72 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 73California, the governor of Arizona sent her troops to avert thewater project of its contestant, California. Later, the problemwas solved by the decision of the Supreme Court of the USA in1963. 136 There are several issues on water sharing andallocation in India, within interstate disputes, which areincreasing political tensions and challenging the federalstructure. 137 Similar problems exist between Punjab and Sind inPakistan. Some of the conflicts have been resolved by longeffort and care and some still need to be resolved to thesatisfaction of the contestant states. Such problems exist notonly in one country or continent, but also wherever water isscarce and its use under stress, particularly in developingcountries.With regard to the Israel-Arab tension, in which one of themain reasons is always water issues, 138 the Israeli Governmentthreatened the Arab water diversion plan on several occasions,stating that diversion of the head waters of the Jordan Riverwould constitute an outright attack on one of Israel's means oflivelihood, and would be regarded as a threat to peace. In thesame line, Arabs also consider Israel's water plan to be againsttheir very existence. Further to the escalation of the dispute bythe Arab water plan, Israel again warned that water is aquestion of life for her and that she would regard any attempt toprevent it from using the water it had been allotted under theJohnston United Plan as a violation of its very right to exist (theJohnston Plan was prepared by a US representative to resolvethe water dispute between the Jews and the Arabs). The issue is136 Supra note 20, pp. 158.137 Staff, “Karnataka Boycotts Cavery Meet” , The Times of India 18 May2000, The meeting was called by the Indian PM on the request ofanother contestant state Tamil Nadu, which was boycotted by theformer, alleging that the centre is working in haste. Also see, “NoConsensus on Draft Water Policy” , The Times of India 8 July 2000.Southern States criticise the policy alleging it will change the powerstructure between the centre and the state and the existing watersharing arrangements between states.138 Supra note 2, p. 373.of so much significance for the existence of a state that stateshave gone to armed conflict for the sake of water. During theIsrael- Arab war of 1967, Israel annexed the Golan Heights,which is a major source of Middle-Eastern water including thatof the Jordan River. One of the main factors leading to Israel’saggression in Lebanon in 1978 and the annexation ofPalestinian land was water. 139 However, Israel and Jordan haveconcluded a treaty regarding the sharing and division of RiverJordan water.In Asia, India and Pakistan have had a belligerent relationship;one of the reasons was the water of the Indus and the Ganges.The increasing tensions and problems in the Euphrates-Tigrisbasin with respect to water sharing issues have also resulteddisputes between Turkey, Syria and Iraq. 140 Several tensionshad escalated to the point of troop deployments along borders,but later an agreement was concluded. 141 On the basis of thatagreement and the assurance of uninterrupted water to beprovided to Syria and Iraq by upstream Turkey, tensions wereeased. It is understood that the South Anatolia project ofTurkey has severely impaired the share of water to herdownstream states. The position of Iraq is particularlyvulnerable, as she has been denied her historic uninterruptedflow of the rivers by the upstream states and 30% of arable land139 Supra note 112, pp. 67-68; also see S. Gupta, “In Israel and Lebanon,Talk of War over Water” , New York Times, 16 October, 2002.140 Ibid. pp. 116-123; Turkish President Suleman has said that “we do notsay we should share their oil resources and they can not say that theyshould share our water resources” in G. W. Sherk, P. Wouters& S. Rochford, “Water Wars in Near Future? ReconcilingCompeting Claims for the World’s Diminishing Fresh WaterResources-The Challenge of the Next Millennium” inwww.dundee.ac.uk/cepmlp/journal/ html/article3-2.141 A. Wolf, “A Hydro Political History of the Nile, Jordan And EuphratesRivers Basin” in A. K. Biswas (ed), International Waters of the MiddleEast, From Euphrates –Tigris to Nile, Oxford: Oxford University,1994, pp. 29-37.
74 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 75has been abandoned because of salt contamination 142 resultingfrom bad irrigation practices and non-cooperation fromupstream states.Even on the continent of Europe, until the beginning of 19 thcentury there were conflicts and disputes regarding theNavigational and Non-Navigational use of the Danube, Meuse,Seine and Rhine rivers, which were later resolved throughnegotiations and treaty-agreements. 143 Apart from this, the EEChas issued several directives with regard to fresh water and itsutilisation. 144 Until recently, there was conflict betweenHungary and Slovakia over the sharing of waters and itsbenefits from the Danube River and, even after the judgementof ICJ in relation to their case, the problem has yet to be settled.Water conflicts are mostly settled by agreements. The best wayto accommodate the interest of all watercourse states is througha balanced plan and execution of the plan. 145 However, thereare some instances of unilateral action in utilising ‘shared’resources for one’s own sake, ignoring the rights of other142 P. Brown, “Unless We Change Our Ways, the World Face Disaster, AUN Report says” The Guardian, 23 May 2002, p. 3.143 P. Costa, "The Effects of War on the Treaties Establishing the LegalRegime of the Danube" pp. 406-408 ; also see, Menno T.Kamminga,"Who can Clean up the Rhine: The European Communityor The International Rhine Commission?” in R. Zacklin and L.Caflisch (eds), The Legal Regime of International Rivers and Lakes,the Hague: Martinus Nijhoff Pub., 1981, pp. 371-373.144 For example Directives on the approximation of the Laws of theMember States relating to Detergents 1973, the Quality required ofSurfaced Water intended for the Abstraction of Drinking Water in themember state, and the Quality of Bathing Water, 1975 etc.145 D. A. Caponera, "Patterns of Co-operation in International Water Law:Principles and Institutions " (1985) in 25 NRJ, pp. 563-588. Also seeA. E. Utton “In Search of An Integrating Principle for Interstate WaterLaw: Regulation versus the Market Place” (1985) 25 NRJ, pp. 985-1004. Generally regulations (known as a rule) infer the rule ofequitable apportionment whilst the market place (known for beneficialuses) refers to efficient uses of waters.riparian states and to, some extent, ignoring the rules ofcustomary international law. The proposed unilateral diversionof the Jordan River by the Arabs ignored the interest of Israel(an Israeli military attack later destroyed the diversion). Israelcarried out similar unilateral use of the Jordan headwater afterthe 1967 war. The unilateral diversion of the Chicago River bythe United States ignoring Canadian interests is another breachof IWL. Furthermore, unilateral diversion of the Ganges byIndia at Farakka ignoring the interests of the then East Pakistan(Bangladesh) and temporary interruption of the Indus waters byIndia in 1948, are examples of illegal and unilateralinterventions in shared watercourses. 146 Apart from theseextreme cases, there are good examples where the spirit ofcooperation, negotiation and conclusion of an agreement haveprevailed as positive developments in the area of IWC.As Berber suggests, it is a widely recognised fact fromexperience that resolution of the water conflicts cannot alwaysbe through a court of law. 147 The appropriate way, rather, is forstates themselves to resolve the conflicts through directnegotiation and conclusion of an agreement. 148 What is more,the disputes in relation to the allocation and sharing of waterare complex issues, and resolution is only possible when theproper knowledge and expertise are addressed to such technicaland complex issues. 149 Generally, courts lack suchspecialisation. In order to achieve this goal, there are146 C. B. Bourne, "Procedure in the Development of InternationalDrainage Basin: The Duty to Consult and to Negotiate "(1972) in XCYIL, p. 214.147 F. J. Berber, Rivers in International Law, London: Institute of WorldAffairs, 1959, p.50148 Ibid. p. 272.149 Regarding the sharing; allocation, delimiting of the continental shelfand fishing issues, after the decisions of the ICJ, states themselvesresolve their differences on the basis of guidance provided in thejudgements. The Gavicikovo-Nagymaros case is also expected to beresolve along the same lines.
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Page 4 and 5: PrefaceIn this book, the author has
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