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

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.