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

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92 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 93“1.watercourse Sates shall, in utilizing aninternational watercourse in their territories, take allappropriate measures to prevent the causing ofsignificant harm to other watercourse States.2.where significant harm nevertheless is caused toanother watercourse State, the States whose usescauses such harm shall, in the absence of agreementto such use, take all appropriate measures, havingdue regard for the provisions of article 5 and 6, inconsultation with the affected State, to eliminate ormitigate such harm and, where appropriate, todiscuss the question of compensation.” 203Article 8 deals with “General obligation to co-operate:1. Watercourses States shall co-operate on the basisof sovereign equality, territorial integrity, mutualbenefit and good faith in order to attain optimalutilisation and adequate protection of aninternational watercourse.2. In determining the manner of such co-operation,watercourse States may consider the establishmentof joint mechanisms or commissions, as deemednecessary by them, to facilitate co-operation onrelevant measures and procedures in the light ofexperience gained through co-operation in existingjoint mechanisms and commissions in variousregions.” 204This Article sought to accommodate the principles put forth inprinciple 2 of the Stockholm conference, Article 21 of theUNCED and several judgements provided by court andarbitration tribunals, i.e. Trial Smelter, Corfu Channel, Lake203 II (1) YBILC (1994), pp. 167-168.204 Ibid.Lanoux, etc. The principle requires cooperation on the basis ofsovereign equality, territorial integrity, mutual benefits andgood faith in order to attain optimal utilisation and adequateprotection of a shared natural resource. Furthermore, this ideahas been supported by the ICJ in its ruling in New Zealandversus France in 1974. 205 Also, regarding the conceptsupported in the Advisory Opinion of 8 July 1996, upon arequest from the UNGA concerning the issue of “Legality ofthe Threat or Use of Nuclear Weapons”, the ICJ stressed that:“the states have the general obligation to watch thatactivities undertaken within their nationaljurisdiction or in zones under their control respectthe environment of other states or areas beyondnational control.” 206 .Part IV deals with protection, preservation and management ofthe ecosystem in Articles 20-26. Part V, Articles 27 and 28 dealwith eco-system protection, harmful conditions and emergencysituations; whereas part IV, Articles 29-33 deal withmiscellaneous provisions for dispute settlement that has beenseverely criticised by many countries, stating that they severelyencroach upon their sovereignty. 207Articles 11 to 19 describe in detail the procedure of givinginformation concerning planned measures and proceduresregarding notification. Article 33 provides for the settlement ofdisputes with the establishment of a joint water entity includingthe referral of the dispute to an impartial fact-findingcommission. When ratifying, accepting, approving or acceding205 ICJ Reports (1974), p. 268.206 www.icj-cij.org; also see D. Momtaz, “The United Nations and theProtection of the Environment” in M. I. Glassner (ed) The UnitedNations at Work, Westport, CT: Praeger, 1998, p. 62.207 During the voting 103 states said yes, 3 (Turkey, China and Burundi)against with 27 abstentions, one of the main reasons for the voteagainst is Article 33’s obligatory provision for dispute settlement.
94 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 95to the present convention, or any time thereafter, states maydeclare that they recognise as compulsory, submission ofdisputes to the ICJ or an arbitration tribunal.Being the first instrument of universal application with anintegrated and holistic and framework approach, the UNCIWhas definitely codified many aspects of Customary InternationalLaw, viz. equitable utilisation with the full consideration ofsustainable utilisation of such resources. 208 The other fact isthat the provisions of this convention will not affect the existingtreaty regimes among and between nations. However, if thestate parties are willing to bring these treaties in line with thisconvention, they can adjust it as and when they deem itappropriate. The regional agreements will also remainunaffected regardless of the fact that a regional economic blochas the right to become a party of this convention. 209 It must berecognised that the convention does not affect existing treatyregimes and these principles are only applicable when stateswish to follow them.From the view of the discussion in the ILC and in the sixthcommittee, and the voting pattern in the UNGA relating to theUNCIW, there is a delicate balance and a package deal ofArticles 5, 6 and 7, on which 38 states voted for, 4 states(China, France, Tanzania and Turkey) against, and 22abstained. From the ILC to the Sixth Committee discussions,states were hugely divided, protecting their individual interestsdownstream versus upstream. Different views were held as towhich rules - ‘equitable utilisation’ or the ‘no harm rule’ shouldsupersede the other. 210 The voting pattern on the substantiveissues suggests that the members voting against or abstainingwere equivalent to the number of states voting in favour. Inorder to implement these principles, states must have separatebilateral or multilateral agreements. From the voting pattern it208 Supra note 2, pp. 308.209 II (2) YBILC (1994), commentary, pp. 95-97.210 Press release/ UNGA/9248, 22 May 1997.appeared that both upstream and downstream states findstrengths and weakness in the final formulation of the articles,as a result of which it can be argued that these provisions lackthe status of customary rule of international law. Furthermore,the compulsory dispute settlement provision under Article 33(10) remains a major area of criticism by a number of powerfulnations. 2112.9.4 The Institute of International LawThis institute has played a pivotal role in the development andcodification efforts of international law since the nineteenthcentury, including the codification of UNCIW. TheInternational Regulation on the Use of IWC for Purposes Otherthan Navigation (Declaration of Madrid), 1911, prohibits anystate from using or allowing the use of the waters of aninternational stream in a way that may cause detrimentalimpacts to other states. 212 Article II prohibits any establishmentin a stream that traverses successively the territories of two ormore states, without the consent of the other states. Along thesame lines, Article II (5) prohibits any construction in thedownstream country that could be the subject of inundation inother state territories. Those rules, however, are not legallybinding even though they are considered as general guidelinesfor states. As demonstrated earlier, the Helsinki Rules, 1966,the UNCNIW 1997, and several concepts and developmentsaddressed by these Rules are contributions of the Institute. Forexample, the illegality of trans-boundary pollution and injury orharm arising from the use of the waters in a state that affectother states is a concept inherited from the earliest works of theILI.Another pertinent instrument is the Resolution of the Use ofInternational Non-Maritime Waters Salzburg 1961. This rule211 Ibid.212 Supra note 57 pp. 274-275.
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International WatercoursesLaw and I
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PrefaceIn this book, the author has
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International Treaties and other Do
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