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

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80 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 81itself a complicated task for the committee. 160 To fulfil itsassignment, the ILA undertook several conferences viz.,Dubrovnik 1956, New York 1958, Tokyo 1964 and finallyHelsinki 1966, where the rules were adopted. During theendeavour, lively discussions were held amongst the membersof the committee on issues ranging from downstream andupstream benefits, issues of equitable utilisation and issues ofexisting and future uses including other aspects of allocation ofwater and sharing of benefits therefrom. Eventually, theHelsinki Rules 1966 adopted the single basin approach alongwith the main principle of equitable utilisation. 161 The drainagebasin approach constituted the primary consensus among thecommittee members at the very outset of the work, which hasbeen defined in Article II. 162The principles of equitable utilisation became the core lawthough there was strong opposition from several scholars andthe basis of their criticism was 'the ideas regarding the conceptof equitable sharing are not clear and states must be free todevelop their uses in accordance with their needs.’ 163 The lackof a precise definition of equitable utilisation is also a reasonfor criticism. Nonetheless, the ILA contribution is quoted inmany treaties 164 , state practices and judicial decisions. 165 It isalso regarded as the foundation of the 1997 UNCIW. 1662. 9. 2 International Law CommissionThe idea of developing international law through therestatement of existing rules or formulation of new rules is notof recent origin. On 22 September 1924, the resolution of the160 Supra note 8, pp. 233-35.161 Ibid. pp. 236 & 249.162 YBILA (1966), pp. 484.163 Supra note 8, p. 281.164 Mekong treaty in 34 ILM, (1995), pp. 864 880.165 Supra note 22, pp. 280, 319-20.166 YBILC (1982), p. 82, YBILC (1983) p. 130.Assembly of the League of Nations created a standing organcalled the Committee of Experts for the progressivecodification of international law, which consisted of seventeenmembers. 167 The institution continued even after theestablishment of the United Nations. Article 13 of the Charterof the United Nations provides that:“The General Assembly shall initiate studies andmake recommendations for the purpose of:a. … encouraging the progressive development ofinternational law and its codification” 168Thus, the ILC was established by the United Nations GeneralAssembly (UNGA) in 1947 169 in order to promote theprogressive development of international law and itscodification. 34 members were elected by UNGA for a fiveyears term in an individual capacity (not as staterepresentatives). 170The UNGA Resolution 2669 (XXV) of December 8, 1970recommended to the ILC to initiate works on UNCIW. Aftersustained hard work for about twenty- five years, the ILCfinally adopted the said rules in 1994 in its forty-sixth sessionand submitted them to the UNGA. From that time,deliberations were made by its different members, and 5Special Rapporteurs. 171 As a result of the profoundcontributions made by well-known scholars on the subject andthe intense efforts of the international community, the UNConvention on Non-Navigational Uses of International167 www.un.org/law/ilc/introfra.htm168 Supra note 54, p. 1052.169 S. C. McCaffrey, "Background and Overview of the International LawCommission's Study of the Non-Navigational Uses of InternationalWatercourses" (1992) in 3 CJIEL & P, p. 18.170 II YBILC (1994), p. 15.171 Richard Kinary, Stephen Schbell, Evansen, Stephan C. McCaffrey andRosentok.
82 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 83Watercourses was adopted on May 21, 1997 by the UNGA 172 .For the convention to come into force, ratification by 35member states is required. So far enough ratifications have notbeen received and it seems the convention will not come intoforce in the foreseeable future. 173 However, it is not unusual forimportant and perhaps controversial conventions to take sometime to come into force. For example the Law of the SeaConference (LOSC) was approved the UNGA on 10 December,1982, but did not enter in force until November 16, 1994. TheUNCIW, even though not yet in force, still will provideinfluential guidance for states.The ILC in its first task asked the member states in 1974 toanswer its questions, viz. the scope of the proposed study, thewater uses to be considered, whether the problem of pollutionshould be given priority, the need to deal with flood control anderosion problems and the interrelationship betweennavigational and other uses. In the same year, the commissionappointed Ambassador Richard D. Kenary of the USA asSpecial Rapporteur for its work on IWC. He first developedseveral questions and sent them to the member states forcomments. By 1976, only 21 states had replied to thecommission. Not much progress was achieved other than areport submitted by the Special Rapporteur. 174The second Special Rapporteur, Schwebel, undertook to draftthe first landmark work of the ILC. His third report, submittedin 1981, considers the basic rules of IWL. As a matter of fact,his two fundamental works were, Article 6, the principle ofequitable utilisation, which states:“without its consent, a state may not be denied itsequitable participation in the utilisation of thewaters of an international watercourse system ofwhich it is a system state”. 175He linked this article with article 8 'Responsibility forappreciable harm' that equitable utilisation is the primaryprinciple of IWL; that is to say, if any harm is inflicted in theuse of an IWC, such use comes under the rule of equitableutilisation. Paragraph 1 of that article read as follows:“The right of a system State to use the waterresources of an international watercourse system islimited by the duty not to cause appreciable harmto the interests of another system State, except asmay be allowable under a determination forequitable participation for the internationalwatercourse system involved” 176As Bourne argued,"for Judge Schwebel, then, the principle of 'noappreciable harm' must on occasion yield to that ofequitable utilisation. In Schwebel's view,appreciable harm is not the decisive factor indetermining the legality of a utilization of thewaters of an international watercourse, though it isvery important, and undoubtedly often theoverriding - factor in that determination.” 177After Schwebel, Evansen succeeded him. He provided a draftconvention of thirty-nine Articles in 1982. Like Schwebel, healso strongly endorsed the principle of equitable utilisation inhis first and second revised draft of 1984; Article 6 read asfollows:172 Supra note 125, pp. 700-72173 www.internationalwaterlaw.org/unciw/status: Till 15 August 2002,twenty countries have ratified it.174 Supra note 1 pp. 18-19.175 The Law of Non-Navigational Uses of International Watercourses, UNDOC.A/CN.4/348 and corr.1; reprinted in 1982, 2(1) YBILC 65, art.6,para 2,at 85 UNDOC A/CN.4/SER.A/1982/ADD.1.176 Ibid. p. 103.177 Supra note 65, p. 74.
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International WatercoursesLaw and I
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