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

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.