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

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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.
Equitable Utilisation / 165 166 / International Watercourses Law and Its Application in South AsiaArticle 3 states in the case of damage referred to in theforegoing Article, an agreement of the parties shall always benecessary. In the case of any injury, the states concerned mustinvolve themselves in negotiation and seek out a satisfactoryresolution of the dispute by paying reparation for the injury. Forinstance, India paid compensation to Pakistan when Pakistan’sirrigation network was disrupted by partition and theconstruction of an irrigation network was required inPakistan. 197In the 1872 Helmond case, such rights and obligations wereprovided to both states. 198 Nonetheless, Iran challenged thedecision and it has not been applied yet. In the inter-statedispute between Aargau and Zurich, the Federal Court ofSwitzerland in its decision of 1878, upheld the principle ofequality of right for both states over their commonwatercourse. 199The German Federal Court, in the case of Wittenberg andPrussia v. Baden in 1927, decided that a state is under "the dutynot to injure the interest of other states". 200 The disputes wereresolved later by mutual agreement. In 1913, the AustrianCourt, the Imperial Royal Administrative Court, in the Leitha197 Ibid. p. 231.; also see supra note 63, p 208-The Indian contributionwas fixed at US$ 174 million, and around US$ 800 million wasallocated by western governments for the Indus Development Fund.198 Ibid. p. 235-36; also see II YBILC (1974), pp. 233-234.199 Schindler, "The Administration of Justice in the Swiss Federal Court inInternational Disputes" (1921) in AJIL, pp. 169-172: A license to builda hydro-electric plant on the Jonalach River was given under Zurichlaw, on the consideration that a certain sum of money deposited in abank be used to indemnify persons whose existing uses downstreammight be injured by the new works. The work diminished the flow todownstream Aargau which led to Aargau complaining to the FederalCourt to declare the former concession invalid. The court called uponthe parties to utilise waters as such way that did not create any harm orcut the entitlement of other cantons.200 Annual Digest of Public International Law Cases, (1927) p. 128.River Case, however, rejected the Hungarian citizens’ claimthat diversion of the Leitha waters inside Austria was aviolation of customary international law. 201 The concept of notcausing injury or any harm to the other basin states was alsoaffirmed in the Franco-Italian dispute over the use of the RojaRiver water. 202In a recent case concerning the construction andimplementation of the Gavcikovo-Nagymaros dam, the ICJ heldthe view that the operation of Variant C by Slovakia, tomitigate the harm caused by non-implementation of the Treatyby Hungary, where 80% of the waters were diverted, ignoringHungary's legitimate interest in it, was illegal. 203 Thus, for itsillegal work Slovakia was required to pay compensation toHungary for having adversely affected Hungary’s reasonableand equitable entitlement over the beneficial use of thosewaters. In the Corfu Channel case, the ICJ adjudged thatrespect for territorial sovereignty is an essential cornerstone ofinternational relations. Albania was held responsible for thedamages incurred by the British vessels and crew, and it wasrequired to give notification of the mines lying beneath thesurface of the sea, where the accident had happened. 204In the context of state practice, a co-riparian state has a right toutilise the waters within its territory on the condition that such201 Annual Digest of Public International Law Cases, (1940) pp. 594-595.202 Annual Digest of Public International Law Cases, (1938-1940) p. 120.203 37 ILM (1998), pp. 168-239.204 ICJ Decision on Corfu Channel case, (1949), ICJ Reports, p. 4, "thecourt draws the conclusion that the laying mines of the minefield couldnot have been accomplished without the knowledge of Albania. Asregard the obligations resulting for her from this knowledge, they arenot disputed. It was her duty to notify shipping and especially to warnthe ship proceeding through the strait on October 22, of the danger towhich they were exposed. In fact, nothing was attempted by Albania toprevent the disaster, and these grave omissions involve herinternational responsibility”.
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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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