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Equitable Utilisation / 103 104 / International Watercourses Law and Its Application in South AsiaChapter- ThreeEquitable Utilisation3.1 Principles of International Water LawFrom the preceding chapter, we can glean at least fourprinciples for resolving conflicts over internationalwatercourses: 1 absolute territorial sovereignty, territorialintegrity, prior appropriation and equitable utilisation, it hasbeen widely held that the equitable utilisation is the bestprinciple. 23.1.1 Absolute Territorial SovereigntyThe substance of this principle is that a state is fully free to usethe waters flowing through its territory as it pleases and it neednot pay heed to any restriction or prohibition on such use. Thisis the traditional view expressed by upstream states in order to1 J. Lipper, "Equitable Utilisation" in A. H. Garretson, R. D. Hayton &C. J. Omstead (eds), The Law of the International Drainage Basins,New York: Oceana Pub., 1967, pp.16-26; see O. McIntyre, "The LawRelating to the Use of Shared International Water Resources: 4 Toolsfor Equity" (1998) in 6 WI, Chancery Law Pub., pp. 23-24; also see M.Fitzmaurice, "Water Management in the 21st Century" in A. Anghieand G. Strurgess (eds), A Legal Vision of the 21st Century: Essays inHonour of Judge Christopher Weeramantry, the Hague: Kluwer Law,1998, pp. 427-429.2 B. R. Chauhan, Settlement of International and Inter-State WaterDisputes in India, Bombay: Indian Law Institute, 1992, pp. 21-40.There are some scholars who hold a different view on whether thereare only four rules on the subject. Chauhan has argued that there areseven prevailing rules, including the doctrine of riparian rights, priorappropriation, territorial sovereignty, natural flow, equitableapportionment, community of interest, and the equitable utilisationtheory.serve their own interest at the price of other basin states. It is anotorious principle that is heavily objected to by theinternational community. It is also known as the HarmonDoctrine, based on the legal opinion provided by the then USAttorney General to the Secretary of State in a dispute over thesharing of waters of the Rio-Grande River between the USAand Mexico in 1896. Neither the international community, northe United States itself, ever accepted this theory. Smith hastermed it as radically unsound and as a ground for legalityunaccepted. 3 However, its mention has been made by somestates; India in 1948, temporarily interrupting the flow of theriver from India to Pakistan; 4 China has asserted it even asrecently as 1997 during discussions on the UNCIW at theUNGA, 5 Austria made similar reference to the principle. 6However, it has never been a principle recognised by mostnations but rather heavily deplored for its basic foundation. 73.1.2 Territorial IntegrityDespite the semantic similarities with the title of the firstprinciple, this is just the opposite of the earlier rule. It pledgesthe right of a downstream state on the ground that upstreamstates cannot diminish, or change the flow of an IWC. Thisprinciple was invoked by downstream states such as Argentina,Egypt, Spain, Bangladesh, Syria, and Iraq against their3 H. A. Smith, The Economic Uses of Waters, London: P.K. King andSon, 1931, p. 8.4 J. Lammers, Pollution in International Watercourses, the Hague:Martinus Nijhoff, 1984, pp. 318-319.5 Press Release, including UNGA vote on the UNCIW 21 May 1997:www.un.org/law/ilc/texts/status.htm Gao Feng has said that the “statehad indisputable sovereignty over a watercourse which flowed throughits territory.”6 C. B. Bourne, “The Right to Utilize Water of International Rivers”(1965) in III CYBIL, p. 205.7 S. C. McCaffrey, "The Harmon Doctrine One Hundred Years Later:Buried, not Praised" (1996) in 36 NRJ, p. 725.
Equitable Utilisation / 105 106 / International Watercourses Law and Its Application in South Asiaupstream neighbours. As we noted in the Lake Lanouxarbitration, Spain’s objection to the French diversion wasrejected on the ground that there is no customary internationallaw that prohibits such a diversion, though it could beprohibited through a bilateral treaty. 8 In substance, this rulecould be called a veto power of the downstream state because itprohibits any significant use of water by upstream stateswithout the consent of the downstream states. The no harm rulesupports this doctrine.In the context of Indo-Nepal water relations, India objected toseveral Nepalese irrigation and hydropower projects, i.e., theSikta, West Rapti (Bhalubang-Deokhuri), Kankai, Babai, andTamur hydropower projects, stating that these works wouldviolate the principle of territorial integrity. 9 At the end ofseveral studies carried out, donors like the World Bank, ADBand Saudi Fund declined to finance those projects on theground of downstream objections. It is worthwhile to mentionthe opposite stand taken by India whilst it was negotiating withits downstream neighbour, Pakistan, in the Ganges case andalso with Pakistan during the 1948 dispute over the allocation8 R. Benhard (ed), Encyclopaedia of Public International Law:Decisions of International Courts and Tribunals and InternationalArbitration, the Hague: North-Holland Comp., 1981, pp. 166-167.9 B. G. Verghese, Waters of Hope, New Delhi: Oxford & IBH Pub.,1990, p. 342. The Rapti-Bhalubhang Project, in which Canadianfinance was committed, collapsed as a result of Indian objections.Initially they had agreed with the project and later changed their stand.The Babai irrigation project was also cancelled because of the Indianobjections which the Kuwait Fund had agreed to finance. Also see H.M. Shrestha and L. M. Singh, "The Ganges-Brahmaputra System: ANepalese Perspective in the Context of Regional Co-operation" in B.G. Verghese, & T. Hashimoto (eds), Asian International Waters: FromGanges-Brahmputra to Mekong, Oxford: Oxford University, 1996, p.81-94.of the Indus river waters. 10 IWL does not support this principle.This issue will be further addressed in Chapter Four.3.1.3 Prior AppropriationThis is a bit more advanced than the two principles discussedabove. Prior appropriation provides that the state which firstutilises the waters of an international river acquires the legalright to continue to receive that quality and quantity of water infuture and cannot be deprived of it without its consent. Inpractice, however, the more developed and resourcefulcountries have had their water appropriation before and oftenare therefore in a more beneficial position than the weak orpoor countries. Therefore, it could be argued that this theoryfavours more developed states at the expense of weaker statesand is not based on a fair and equitable foundation. There areseveral examples of this.In the Nile case, downstream Egypt has always laid claim to itshistoric right over the waters of the river and threatened thepoorer and weaker upstream state, Ethiopia, which is not ableto use waters that originate and flow from its territory. 11 It is anobvious but notorious disparity against international law norms.Such conduct on the part of a downstream state does notprovide equity, and a fair share of waters for such vulnerablestates like Ethiopia. In this case, Egypt warned that she woulddeclare war if the waters were utilised by upstream states andalso offered the transfer of some water to Israel if she would beready to resolve the Palestine problems. 12 After the conclusionof the Camp David Treaty between Egypt and Israel, PresidentSadat talking to the Israeli press, had unveiled a plan for apipeline to bring the Nile water to the recently returned Sinai.10 India has now taken opposite stand while dealing with Nepal.11 N. Kliot, Water Resources and Conflict in the Middle East, London:Routledge, 1994, p. 68.12 Ibid.
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PrefaceIn this book, the author has
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Chapter- ThreeEquitable Utilisation
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