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

76 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 77constitutional and legal arrangements made in each state. Forexample, the Indian Constitution, 1948 forbade the SupremeCourt and other courts to exercise their jurisdiction over waterissues. 150 In Italy, South Africa and the Scandinavian countriesthere are separate water courts, and water issues are beyond thejurisdiction of other courts. 151Moreover, the SADC treaty and protocol provides for aseparate water court to provide its opinion and resolve alldisputes within its jurisdiction. That is to say generally, regularcourts are not specialists in water disputes, and therefore eitherspecial tribunals or separate water courts have been constitutedin the above examples. Even in the general courts, for examplein the case of the USA, special Masters’ findings and adviceplay a vital role in the adjudication of water resources conflicts.In this context, Bourne observed that the best way of resolvingwater related conflict is through negotiation. 152 Internationallaw provides general guidelines, but states themselves mustwork according to the concept of law. In concluding thissection, state practices and treaty provisions do not providesingle rules or practice; however, the majority of such practicesindicate that equitable utilisation is the established andrecognised rule in IWL. However, the area needs to bedeveloped and enunciation of rules that can be applieduniversally is yet to be developed. It is apparent that whateverprinciples have been developed so far are still inchoate. 153150 Supra note 22, p. 231, Article 262 of the Indian Constitution, 1950 andthe Inter-State Waters Dispute Act, 1956 prohibit Supreme Court andother Court jurisdiction on inter-state water disputes.151 M. Fitzmaurice,"Water management in the 21st Century" in A. Anghie& G. Sturgess (eds), Legal Vision of the 21st Century: Essays inHonour of Judge C. Weeramantry, the Hague: Kluwer Law, 1998, pp.425-463.152 Supra note 65, p. 90153 Supra note 7, pp. 215-231.2. 9 International Law Reform EffortsIn this section, analysis of IWL in light of the above will bemade and several institutions efforts on codification will bemade.2.9.1 The Helsinki Rules on the Use of the Waters ofInternational Rivers, 1966 and the ILAThese are the first rules applicable to international waterdisputes with a holistic and integrated approach. The rules,however, were adopted by a non-governmental organisation,and are not legally binding. The rules consist of six chapters, 37Articles with one Annex. Substantial principles enunciated inthe rules must be evaluated in order to appreciate them. 154 Thefirst approach, of importance, is the drainage basin approach,which has already been described in the preceding chapter. Adrainage basin is an indispensable unit regardless of thepolitical boundary. Therefore, the rules take into considerationthe interest of other states so that no state considered free to usethe waters as it pleases, undermining the interest of the others.The core of the entire rules is equitable utilisation ofinternational drainage basins which is encapsulated in ArticleIV and will be discussed later.Article V stipulates the relevant factors, determining whether acertain use does or does not constitute an equitable andreasonable use of an international basin. The details of theseinstruments and the far-reaching effects of such rules will beanalysed in the upcoming Chapter Three. Article VI embodiesthat no use is entitled to any inherent preference over any otheruse or category of uses. Article VII provides that no basin stateis to be denied the present reasonable use of the waters of aninternational drainage basin to reserve a future use of suchwaters for a co-basin state. Article VIII spells out the154 The Helsinki Rules of the ILA 1966 (fifty-two session) pp. 478-532.