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

90 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 91possess similar legal systems and legislation that function wellfor the non-discrimination clause. Eventually, the UNCIW wasadopted with the main rule being equitable and reasonableutilisation without causing any detrimental effect to otherwatercourse states. 1982.9.3 UNCIW, 1997The convention consists of 36 articles. 199 Part I deals with theintroduction. Article 1 deals with the scope of the presentconvention, Article 2 the use of terms, and Article 3 thewatercourse agreement. The definition of a watercourse wasonly made in 1991 as stated previously. By that definition,groundwater, lakes, streams, rivers and aquifers areindispensable parts of a watercourse system. This phrase wasmodified by the word 'normally' in order to address the twodiverging views on it. The reasons given for this are:"thus, for example, the fact that two differentdrainage basins were connected by a canal wouldnot make them part of a single 'watercourse' for thepurpose of the present articles. Nor does it mean,for example, that the Danube and the Rhine form asingle system merely because, at certain times ofthe year, water flows from the Danube as groundwater into the Rhine via Lake Constance." 200The reason to select the term watercourse is that this concepthas long been used in international agreements, state practiceand judicial pronouncements to refer to a river, its tributariesand related canals. 201 Nevertheless, basically, there is nofundamental distinction between the watercourse and drainagebasin concepts but the former term has been habitually used198 Supra note 7, p. 217-18.199 Supra note 3, pp. 700-720.200 II (2) YBILC (1994), pp 90-91.201 Ibid. p. 91.and is less contentious and acceptable to all. Therefore, I haveselected this option rather than the contentious drainage basinapproach. The heart of the convention as evaluated earlier, ispart II, general principles, Article 5 to Article 10. In Article 5on ‘equitable and reasonable utilisation and participation’, itmust be mentioned that the word ‘sustainable’ has been addedby the Sixth Committee.Article 6 comprises 17 elements relevant to equitable andreasonable utilisation and is also analysed in the next chapter.As a matter of fact, each factor mentioned in Article 6, carriesequal weight. However, their application could vary in eachcircumstance; but equity plays the vital role in itsdetermination.Article 7, the obligation not to cause significant harm, asmentioned earlier is another significant rule. The ILC wasconfronted with a divergence of views and much of its time hasbeen spent on this Article; which was also changed in the sixthcommittee of the UNGA. 202 As evaluated earlier, the wordingof 'appreciable’ harms was changed to ‘significant harm’ in theSixth Committee and Article 7(2) was also changed by ‘duediligence’ in order to maintain a balance between the no harmand equitable utilisation principles.In some instances the equitable and reasonable use maylegitimately cause minor harm. If any use causes such harm,there must be negotiation in order to eliminate or abate suchharm. Even if some harm is inevitable, the question ofreparation could be invoked to address the problem. Article 7provides:202 Sixth committee deliberation in UN: Article 7, Paragraph 1 ‘exercisedue diligence’ changed to 'take all appropriate measures', and in article5 'sustainable' was added, II (2) YBILC (1994), Report of theCommission to the General 'Assembly on the work of its forty SixthSession, 1994, pp. 103-105.