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Equitable Utilisation / 115 116 / International Watercourses Law and Its Application in South Asiain Article 6 of the UNCIW. 31 In order to give emphasis to thepopulation factor it was essential to put it expressly to avoidany confusion created by the above judgment. In the case of theallocation of resources between two developing countries, theless developed country, for example as between India andNepal, Nepal, should get priority according to the rule ofequity. This is by analogy with the tradition of developedcountries providing finance to the development effort ofdeveloping countries, to less developed countries at differentstages of development.It can be argued that developing and vulnerable nations couldbenefit from socio-economic, and population factors stipulatedin Article 6 of the UNCIW, whilst sharing and allocating thebenefits from common water resources. 32 The next significantdevelopment is the interpretation of equitable utilisation in thecontext of the Gavcikovo-Nagymoros case by the ICJ, whichclearly recognised equitable utilisation as a basic rule ininternational law that gives impetus to Articles 5 and 6 of theUNCIW. 33 In this case, the court held the view that accordingto the treaty of 1977, Hungary had agreed to share the benefitsfrom the Danube River. Non-implementation of the treaty,however, did not mean that it had forfeited its right over thereasonable and equitable sharing of the benefits from thereon. 3431 Judge Weermantry's opinion in the Maritime Delimitation in the Areabetween Greenland and Jan Mayen case (Den.v.Nor.) ICJ Reports(1993), p. 268: “no general proposition can be laid down that thepopulation factor is in all cases irrelevant.”32 X. Fuentes, “Sustainable and Equitable Utilisation of InternationalWatercourses” (1998) in 69 BYBIL, p. 119; also see principle 6 of theRio Declaration proclaiming that the special situation and needs ofdeveloping and those most environmental vulnerable, shall be givenspecial priority.33 In the Gavcikovo-Nagymaros case interpretation of equitable utilisationhas been construed as a skeleton rule of shared natural resourcesbetween the states, in 37 ILM (1998), para. 85, p. 191.34 Ibid. p.190.The equitable utilisation rule reciprocates with the no harm rulein Article 7, the obligation not to cause significant harm and totake appropriate measures to prevent significant harm to theother watercourses states:“2 where significant harm is nevertheless caused toother watercourses States, the States whose usecauses such harm shall, in the absence of agreementto such use, take all appropriate measures, havingdue regard for the provisions of articles 5 and 6, inconsultation with the affected State, to eliminate ormitigate such harm and, where appropriate, todiscuss the question of compensation." 35Article 8 prescribes the general obligation to cooperate.Similarly, Articles 20 and 21 oblige states to prevent, reduceand control pollution. Non-compliance with those provisionscould be alleged as a breach of Articles 5 and 6, implyinginequitable use of water resources. 36In practice, however, there have been very bitter experiences ofnon-co-operation, which have led to a situation of war. 37 TheArab decision to build an all-Arab diversion of the Jordanheadwaters to preclude the Israel National Water Carrier endedthree years later when Israeli tank and air strikes halted35 UNCIW: Article 7(2).36 Ibid. Article 20/21.37 Supra note 13 p. 173; also see supra note 17, pp. 639-641: During the1948 war, the Rutenberg Electricity generating plant was destroyed byIsrael to avoid exclusive control of the Jordan and Yarmuk waters byArabs. Arab states in 1964, had taken a steps to build dams in order toutilise water from the Wazzani, Hasbani and Banyas rivers, forirrigation in Lebanon, Syria and Jordan, after conveying water to theJordan valley through the East Ghor canal. Israel considered this is anaggressive action that threatened its water resources and destroyed itswork site in an attack.
Equitable Utilisation / 117 118 / International Watercourses Law and Its Application in South Asiaconstruction on the diversion. It was in June 1967 that the sixdaywar changed the regional riparian positioning: by annexingthe Golan Heights of Syria, Israel acquired two of the threeJordanian river headwaters and the recharge zone for mountainaquifers that currently supply about 40% of Israel’s fresh watersupply.3.3 Procedural LawIn order to attain the notion of equitable utilisation of an IWC,agreements are generally regarded as the best means ofavoiding disputes between co-basin states. Thus, states arerequired to consult and negotiate about the utilisation inquestion. If there were any adverse effects on the other riparian,mutual consultation and discussion are required so that anyharm is mitigated, averted or even compensated for throughconcluding an agreement to this effect. The Helsinki Rules inArticles XXIX to XXXVII provide such a procedure, i.e.,mediation, consultation, negotiation, the use of joint agenciesand good offices and, ultimately, arbitration as a means ofpreventing and settling the disputes. 38These procedural rules are incorporated in Article 4 of theConvention relating to the Development of Hydraulic Poweraffecting more than one State and Protocol of the Signature -Geneva 1923. 39 Ever since, this has always been asserted inmajor publications, treaty regimes and instruments. Besides thisprovision, from the perspective of the ICJ, it has been firmlyasserted in numerous judgements, e.g., the North Sea38 Chapter Six, Articles 26-37 of the Helsinki Rules stipulates proceduresfor the settlement of disputes.39 "If a contracting state desires to carry out operations for thedevelopment of hydraulic power which might cause serious prejudiceto any other contracting state, the states concerned shall enter intonegotiations with a view to the conclusion of agreement which willallow such operation to be executed."Continental Shelf Cases 1969 40 and the Fisheries JurisdictionCase 1974. 41 In both cases, the former was concerned with thedelimitation of the Continental Shelf and the latter with theapportionment of shared fisheries. In these cases, the court heldthat the parties were under the duty not to act unilaterally but tonegotiate in good faith in an attempt to reach an equitablesettlement of those issues in dispute.3.3.1 The Duty to Consult and NegotiateBourne has observed that similar to other disputes ininternational law, international drainage basin disputes are to besettled in one of three ways:"by the agreement of the parties, reached afterconsultations and negotiations and perhaps aided by themediation and conciliation of a third party; bysubmission to third party determination; by the use offorce” as ensured under chapter VII of the UNCharter. 42Numerous instruments have been adopted to consult andnegotiate in case of disputes in the execution of any project,e.g., the Declaration of the Seventh Inter-American Conferenceheld in Montevideo in 1933, the resolution adopted by theInter-American Bar Association at Buenos Aires in 1957,Article 6 of the Salzburg resolution in 1961 of the Institute ofInternational law, and the document of the Committee onElectric Power of the Economic Commission of Europe in1954. 43 The Lake Lanoux Tribunal, in its decision in a case40 ICJ Reports 3, (1969) pp. 45-52.41 ICJ Reports 3, (1974) pp. 1-70.42 C. B. Bourne, “Procedure in the Development of InternationalDrainage Basins: the Duty to Consult and to Negotiate" (1972) in XCYBIL, p. 212; also see Bourne, "Mediation, Conciliation andAdjudication in the Settlement of International Drainage BasinDisputes" (1971) in X CYBIL, pp. 114-158.43 Ibid.
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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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ADBAJILAus.JILAYBLADPILALCCASEANAGO
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GlossaryMap of the Ganges BasinThe
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Chapter- ThreeEquitable Utilisation
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Introduction / 1 2 / International
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Legality River Linking Project / 25
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