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

Equitable Utilisation / 121 122 / International Watercourses Law and Its Application in South Asiathe other watercourse states. Other elements includecooperation between watercourse states in the event of anyinjury, the obligation to mitigate, avert or eliminate such injuryor, alternatively, the payment of reparation in case of injuryinflicted. Excluding some exceptional instances, co-basin orwatercourse states are usually willing to try to settle their waterdisputes by consultation and negotiation. 523.3.2 Discharge of DutyThe basic element of the Law of Treaties is to ensure that theparties will implement the provisions of a treaty in good faith. 53Judge Lauterpacht adopted the good faith concept in theNorwegian Loan Case, where he propounded: “unquestionably,the obligation to act in accordance with good faith, being ageneral principle of law, is also part of international law.” 54Similarly, in Interhandel he spoke of "the abiding duty of everystate is to act in good faith." 55 In the North Sea ContinentalShelf judgement the ICJ accepted this view, it was based on theequitable principle for delimiting the Continental Shelf betweenadjacent states on “a foundation of very general precepts ofjustice and good faith.” 56 It further states:"… the parties are under an obligation to enter intonegotiations with a view to arriving at an agreementand not merely to go through a formal process ofnegotiation; … they are under an obligation so to52 Of the 253 treaties on the non-navigational use of international rivers includedin the volume prepared by the Secretariat at the United Nations and publishedin early 1960 at least 116 indicate that no undertaking will be carried out whichmake any change in the regime of a river without the consent of the othercountry. E. Fano," Brief Comments on the United Nations Water Conference"in Albert E. Utton and L. Teclaff (eds), Water in Developing World, Colorado:Westview Press, 1978, pp. 267-269.53 Article 26 of the Vienna Convention on Law of Treaties, 8 ILM (1969)p. 685.54 ICJ Reports 9, (1957) p. 53.55 ICJ Reports 6, (1959) p. 113.56 ICJ Reports 3, (1969) pp. 46-47.conduct themselves that the negotiations aremeaningful, which will not be the case when either ofthem insists upon its own position withoutcontemplating any modifications of it…" 57The principle of good faith requires states subject to this duty tocontinue consultation and negotiation until they reach anagreement. The PCIJ in its advisory opinion of October 18,1931 concerning the Railway Traffic case between Poland andLithuania stated:"… an obligation to negotiate does not imply anobligation to reach an agreement, nor in particulardoes it imply that Lithuania, by undertaking tonegotiate, has assumed an agreement, and is inconsequence obliged to conclude the …agreements." 58Later, in a case where the same approach was taken by the ICJ,in its advisory opinion on The Status of South-West Africa, thecourt denied that a state which has assumed an obligation tomake an agreement with another state was in fact under anobligation to reach an agreement with it. The court had furthermade it clear that the parties must be free to accept or reject theterms of a contemplated agreement. No party should impose itsterms on another party. 59The ICJ in the Gavcikovo-Nagymoros case again endorsed theprinciple. 60 Articles 8 & 9 of the UNCIW state the sameprovision between watercourse states. Whilst carrying out anyproject in an IWC, Articles 11-19 have stipulated detailedprovisions, as briefly discussed above. These provisions spell57 Ibid. p. 47.58 PCIJ Ser.A/ NO 42, (1931), p. 116; also see Bourne, supra note 42, pp.225-226.59 ICJ Reports (1950) pp. 128 &139.60 37 ILM, (1998), para. 78, p. 190.