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

Equitable Utilisation / 163 164 / International Watercourses Law and Its Application in South Asiadisputes between the USA and Canada about the Canadianproposal for diverting the Columbia River water through theFraser Diversion Scheme, and this was not implemented. 188 TheLake Lanoux case provides a good illustration of a diversion inwhich the Arbitral Tribunal rejected Spain’s argument and heldthat a diversion followed by restitution was not contrary to thetreaty provision and international law. 1893.10 The Right of a State to Utilise Water in its ownTerritoryEvery state does have the right to utilise the waters within itsterritory; however, this right is not unlimited and unconditional.Each state can use the waters in such a way that it does notinjure the other watercourse states on account of its utilisation.Court judgments such as the Lake Lanoux Arbitration, and theverdict on the diversion of waters from the Meuse casesupported this view explicitly. In U.S. inter-state water cases,such as Connecticut v. Massachusetts, New Jersey v. New York,and Kansas v. Colorado, the right of states to utilise waters intheir territory has been safeguarded and advocated (which hasbeen evaluated already). However, the first precondition tosuch utilisation is that it must not be injurious or harmful to theother basin states, and that the share one is entitled to must notbe exceeded. 190 The idea of not causing injury as enunciated inthe Trial Smelter case sic utre tuo ut non atianum laedas(analysed above) is one of the foundations of this idea.As discussed earlier, Article 4 of the Salzburg Resolution of theILI in 1961 completely prohibits any utilisation that mightcause injury, as did the Declaration of Montevideo, the 1957188 R. W. Johnson, “The Columbia Basin” in Q. Garreston, R. Hayton &C. Olmstead (eds), The Law of International Drainage Basins, NewYork: Ocena Pub, 1967, pp. 202-220.189 24 ILR (1961) p. 101.190 Supra note 6, pp. 190-191.Buenos Aires Resolution, and the Madrid Declaration, 1911. 191Articles IV and V 192 of the Helsinki Rules and Articles 5, 6, 7,20, 22, and 24 of the UNCIW reaffirm these ideas.The report of the Nile Commission, which was embodied in the1929 Nile Waters Agreement between Egypt and Sudan,protects only the efficient utilisation of waters from seriousinjury by the acts of co-riparian state. 193 The approach that onlyefficient utilisation is to be protected under international lawwas somewhat diluted by the Rau Commission in 1939,regarding the disputes between Punjab and Sind. A commissionheaded by Sir Bengal Rau, recommended that the Sind shouldtransform its wasteful inundation canal system into a weircontrolledone, and that Punjab should allow Sind three years todo so before starting its own project, and Punjab shouldcontribute to the cost of the barrage necessary to make theconversion of the canals in Sind. 194 The American experienceillustrated by the Supreme Court decision in Wyoming v.Colorado supports this notion of useful and beneficialutilisation. 195Article 2 of the 1933 Declaration of Montevideo, provides that“… no state may, without the consent of the otherriparian State, introduce into watercourses of aninternational character, for the industrial oragricultural exploitation of their waters, anyalteration which may prove injurious …” 196191 Ibid. pp.195-202.192 Article 4 of the Helsinki Rules 1966, and the UNCIW, Article 6prescribes the conditions prerequisite for Article 5.193 Supra note 6, p. 214.194 Ibid. p. 215: the Commission found that the upstream project would infact cause material injury to Sind's inundation canals which wereoperable only at times of flood, and it was the method of irrigation andnot the volume of water used that was the source of the problem.195 Ibid. pp. 217-218.196 Ibid. p. 223; also see the Seventh International conference of OAS atsupra note 174, p. 204.