International Watercourses Law and Its Application in South Asia

Dr. Trilochan Upreti has been working with His Majesty's Government of Nepal as a Joint Secretary. At the moment, he has been working in Human Rights division, in Office of the Prime Minister and Council of Ministers. He has worked 23 years in different offices on different capacity. He has also taken part as a member of Nepalese delegation in negotiation with India concerning the water resources development in South Asia. He has concluded his Ph.D. from the University of Reading, UK in 2004. His thesis was related with the development and codification of international watercourses law and its application Dr. Trilochan Upreti in south Asia. However, he has rewritten and transformed it into the shape of this book. He has written dozens of articles in several daily newspapers and also in several journals regarding different aspects of water resources development and has analyzed the role of international watercourses law. Particularly, his contribution on the application of the principle of equitable utilization has been highly appreciated. He has also written a travel story regarding his days in the United Kingdom. Besides, he has contributed one article "Equitable Utilization of Nepalese Water Resources: Bilateral and Regional Perspectives" in International Watercourses Law for the 21st Century, edited by Surya P. Subedi, which is recently published by ASGATE Publisher in United Kingdom and the United States of America. Another article "The Role of the World Bank and Financial Institutions in Funding Water Resources Projects" has been expected to publish in Indian Year Book of International Law, 2005. Dr. Upreti has deep interest in legal aspects of water resources Pairavi Prakashan utilization between riparian countries and has been deeply involved in several research projects. He has been teaching Public International Law and Business Law in two colleges.

I II

For Pairavi Prakashan Published by Managing Director Padam Siwakoti

International Watercourses

Law and Its Application Edition : 2006

in South Asia © Trilochan Upreti 2006 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher and Author. Trilochan Upreti has asserted his right under the Copyright Law.

Dr. Trilochan Upreti Price : NRs. 1000/– I.C. : 700 US$ : 20 £ : 15

ISBN : Hard Bound : 99946-51-22-6 Paperback : 99946-51-21-8

Pairavi Prakashan (Publishers & Distributors) 'M' House Ramshapath, Kathmandu P.O. Box: 9570, Tel: 4229233 Printers :

XVII XVIII

the reasonable and equitable share from the viewpoint of various relevant factors and is also not possible to formulate a general rule to assign weights to these relevant factors. Equitable utilization of resource is based on equity, i.e., fairness, faithfulness and norms of distributive justice, and the interest of every Preface riparian State is taken into consideration. The author has recommended the principle of equitable utilization to be the most ideal rule for rivers of Nepal In this book, the author has attempted to present a comprehensive that flows across India and Bangladesh. Although equitable utilization is review of the evolution of water law over the centuries. While doing so, the arguably the best approach to achieve justice in sharing a watercourse and is author has also attempted to outline the positive and negative aspects of the possibly the best possible means for resolving the conflicts, the question as international treaties on boundary and transboundary rivers around the to "how to make the principle operational" remains unanswered, and it will world. be asking too much to expect an answer from the book. Like any international law in general, the one covering water sector Nepal, as a co-riparian State, has border rivers and also trans-boundary also constitutes mainly the State practices, judicial pronouncements, rivers. A regional or sub-regional treaty on sharing water is not yet in international coventions and scholarly writings. In this book, the author has existence. Nonetheless, we have the experience of entering into bilateral cited a profusion of examples of water disputes across the world and the agreements on one border river and two transboundary rivers. So far as ways they were attempted to resolve. The author, after doing a critical equitable utilization is concerned, agreements on trans-boundary rivers analysis of the four doctrines of international water law, viz. territorial namely Koshi and Gandak Agreements in no way illustrate the principle of sovereignty, territorial integrity, prior appropriation and equitable equitable utilization, whereas the agreement of border river, namely utilization, has considered the last doctrine as the best, one, for it has wider Mahakali Treaty, reflects the principle of equitable distribution to a greater acceptance among the international community. The author seems to be an extent. However, it is important to note that the Mahakali Treaty has ardent supporter of the principle of equitable utilization, because he has ascertained the equitable sharing only for the water that will be augmented emphasized in a number of places in the book that the principle would help from the development of Pancheswore Multipurpose Project and not for the serve the interests of the riparian States and resolve their disputes in a natural flow of the river. This is owing to the integration of Sarda reconciliatory manner. Agreement in Mahakali Treaty. Nevertheless, Mahakali Treaty could be the The book also elaborates the water availability and its potential uses in framework treaty for the equitable sharing of water of border rivers, if South Asia for the economic development and environmental sustainability implemented with good faith and sincerity. of the region. It attempts to outline the problems and suggest the equitable Nepal without a delay needs to develop its strategy and framework for utilization of rivers as solutions to them. the equitable sharing of watercourses. In doing so, she should adopt The concept of equity and the emerging concept of equitable utilization different approaches for border rivers and trans-boundary rivers. Although in shared natural resources have been dealt with at length, citing judicature the book is comprehensive on principle of equitable sharing, it has yet to of the International Court of Justice. The readers will get an opportunity to address the issues adequately in the context of Nepal and her rivers. be acquainted with numerous international treaties on water sharing that are The legal aspect of India's River Linking Project has been discussed in said to be based on the principle of equitable utilization. the book in terms of her national and international dimensions both as The oft-quoted Columbia River Treaty between the USA and Canada threats and opportunities to the smaller neighbouring countries. The book is believed to be ideally based on the principle of equitable utilization. In gives quite an insight on the project for those interested in the region's water this book, this treaty is broadly suggested as an ideal point of reference for resources. treaty on shared watercourses based on the principle of equitable utilization. All in all, it is a very comprehensive work dealing with water issues However, it is important to note that the concerned riparian States took from the naitonal, regional and global standpoints. The book gives decades to reach an agreement on the Columbia River water sharing. The significant information on Nepal's position on water resources. The book treaty was not signed overnight. seems to have a number of repetitions of some of the issues, which perhaps Helsinki Rules are believed to be the basis for principle of equitable will be done away with in the later editions. utilization. The rules state- "each basin State in entitled within its territory to get reasonable and equitable share in the benefical uses of the water on international drainage basin". However, it has not been easy to determine 25 December 2005-12-25 (Mahendra Nath Aryal) Secretary XVII XVIII customary international law, many related issues still remain contentious, particularly in the developing world. There is still no Preface one authority able to agree a universal definition of equity/equitable utilisation and how this is to be reconciled with

the ‘no harm’ rule, and in the meantime, state practice has led to a South Asia has been remain one of the poorest area of the world variety of resolutions. despite the fact that immense water resource available here has not been fully used for the beneficial use of countries of this area. It The notion of equity is generally agreed to imply that nations has been identified that utilisation of these resources for the representing the weak, poor and vulnerable should receive poverty alleviation, infrastructure development and also for the preferential treatment by means of concessions made by the richer livelihood of people is of utmost required. However, even in this nations and even by the richer developing state. This concept is circumstance states are not moving forward to end their suspicion, well exemplified by the Millennium Development Goal and Debt bitterness and move ahead for the end of this cause by this means. Relief Programmes, amongst other measures. The problems of This book has critically analysed the root cause of different views vulnerable countries such as Nepal must be overcome in a and stands of these nations and demonstrates how states in another constructive, effective and prudent manner, by means of greater part of the world have been able to settle their divergent views and international co-operation based on the elements of equity, and utilised shared waters for their mutual benefits. In doing so, requiring a reversal of the present policies of the World Bank and evaluation of the law and practice developed so far has been made the richest industrial nations. This book has shown that the rule of and how such law can be applied in south Asia has been equitable utilisation provides the ability to resolve conflicts in a recommended. Basically, critical analysis of international water win-win manner, including in the Indo-Nepalese context. law and its application in south Asia is the major objective of this book. There are very many people who have significantly contributed to

this studies but it is not possible to mention all of them. However, Fresh water is an indispensable part of the hydrosphere and the my wife Mrs Puspa Devi Upreti has provided me source of terrestrial system. Water is a finite resource for which there is no funding, inspiration and needful help in completing my PhD in the substitute; its total volume cannot be increased and no living thing United Kingdom and the book is based on these four years hard can exist without it. Global water usage is becoming unsustainable work. Professor S. P. Subedi, Dr Chris Waters, Dr Duncan French, at present levels, which are still rapidly increasing due to the and Mr Damodar Bhattarai contribution in this undertaking should world’s swelling population, and per capita usage that is be acknowledged. If this book contribute, even little, in creating increasing with prosperity. The other issue of great concern is the conducive environment for making broader consensus among uneven availability and unsustainable use of water, exacerbated by nations of south Asia and to the academic circle in their better problems such as pollution, deforestation and desertification. understanding about this complex area, the author would consider Indo-Nepalese water relations are used as a case study. that the effort has been succeeded.

To date, most problems associated with water use and its In spite of my sincere effort there could be lacking and allocation have been resolved through negotiations, agreements, shortcoming and any comment and criticism in this regards will be and judicial pronouncements, assisted by experts in this field, and heartily welcomed. by reference to international customs and state practices. Although some of these practices – those which are unanimously recognised 23 December, 2005 - Dr. Trilochan Upreti by the international community – have taken the shape of XVII XVIII 1. Table of Bilateral Treaties International Treaties and other Documents 1. Convention between Norway and Sweden on Certain

Questions Relating to the Law on Watercourses, signed at

Stockholm on 11 May 1929. Convention relating to the Development of Hydraulic Power 2. Convention Regarding the Determination of the Legal affecting more then one State and Protocol of signature, Status of the Frontier between Brazil and Uruguay signed Geneva, 9 December 1923. at Montevideo on 20 December 1933.

3. Treaty between Great Britain and the United States Convention on Law of Non-Navigational Uses of International Relating to Boundary Waters, and Questions arising Watercourses, 21 May 1997. between the United States and Canada signed at

Washington, 11 January, 1909. Convention on the Protection and Use of Transboundary 4. Treaty between the United States and Mexico relating to Watercourses and International Lakes, Helsinki, 17 March the utilization of the waters of the Colorado and Tijuana 1992. Rivers and of the Rio Grande (Rio Bravo) from Fort

Quitam, Texas, to the Gulf of Mexico, signed at International Regulation Regarding the Use of International Washington on 3 February1944, and supplementary Watercourses for Purposes other than Navigation, Declaration Protocol, signed at Washington on 14 November 1944. of Madrid, 20 April 1911. 5. Exchange of Notes between His Majesty’s Government in

the United Kingdom and the Egyptian Government in The Convention and Statute on the Regime of Navigational Regard to the Use of the Waters of the River Nile for Waterways of International Concern, Barcelona, 20 April, Irrigation Purposes, Cairo 7 May 1929. 1921. 6. Agreement between the United Arab Republic and the

Republic of Sudan for the full Utilization of the Nile The Helsinki Rules on the Uses of the Waters of International waters, signed at Cairo on 8 November 1959. Rivers, Helsinki, February 1966. 7. Treaty between India- Pakistan Regarding the Use of the

Waters of the Indus, signed at Karachi on 19 September Resolution 33/87 on Cooperation in the Field of the 1960. Environment Concerning Natural Resources Shared by Two or 8. Treaty between the United States of America and Canada More States, New York, 15 December 1978. Relating to Co-operative Development of the Water

Resources of the Columbia River Basin, signed at Washington, 17 January 1961. 9. Agreement between the Government of Nepal and the Government of India on the Gandak River Irrigation and Power Project, signed at Kathmandu on 4 December 1959. 10. Agreement between the Government of India and the Government of Nepal on the Kosi Project, signed at Kathmandu on 25 April 1954. XVII XVIII 11. The Treaty on the Lesotho-Highland Water Project 1986, Table of Cases Lesotho-South-Africa. 12. The treaty of the utilisation of the Parana River, Gauira 1. Decided by International Courts/ Tribunals falls and Ygazu River, 1973 Paraguay-Brazil (ITAIPU). 13. The Treaty of Peace 1994, Israel and Jordan. 1. The case relating to the territorial jurisdiction of the 14. The Treaty on Sharing of the Ganges Waters at Farakka International Commission of the River Oder, 1929 (PCIJ). 1996, India-Bangladesh. 2. The Diversion of Water from the Meuse 1937 (PCIJ). 15. The Integrated Treaty on the Sharing of Mahakali River 3. The Gabcikovo-Nagymaros Case 1997 (ICJ). 1996, Nepal- India. 4. Helmand River delta case 1872 and 1905 (Arbitration). 5. Lake Lanoux case 1857(Arbitration). 2. Table of Multilateral Treaties 6. Gut Dam case 1968 (Arbitration). 7. The Trail Smelter case 1938-1941(Arbitration). 1. The Treaty for Amazon Co-operation, 1978 Bolivia-Brazil- Columbia-Guyana-Peru-Surinam and Venezuela. 2. Major cases decided by municipal courts. 2. Agreement on the Environmentally Sound Management of the common Zambezi River System 1987 Angola, 1. Kansas versus Colorado 1902 & 1907. Botswana, Congo, Lesotho, Malawi, Mauritius, 2. Wyoming versus Colorado 1936 & 1940. Mozambique, Namibia, Seychelles, South Africa, 3. New Jersey versus New York 1931. Swaziland, Zimbabwe, Tanzania and Zambia. 4. Connecticut versus Massachusetts 1931. 3. Agreement for the Sustainable Development of the 5. The Krishna River Dispute, 1961. Mekong River Basin, 1995 Thailand, Laos, Cambodia and 6. The Narmada River Water Dispute, 1978. Vietnam. 7. The Godawari River Water Dispute, 1980. 8. The Punjab-Rajasthan-Haryana Water Dispute 1986. 9. The Tungabhadra River Dispute 1944. 10. The Muskhund Dam project Dispute 1965. 11. The Bajaj Sagar Dam Project 1966. 12. The Zwillikon Dam case 1878. 13. The Leith River case, 1913. 14. Societe Enerfie Electrique verusa Compaynia Imprese Electriche Liguri 1939. 15. Wurttemberg and Prussia versus Baden case 1927.

XVII XVIII Acronyms GSP General System of Preference GAP Guneydogu Anadolu Projesi (Greater Antolia ADB Asian Development Bank Project) AJIL American Journal of International Law HILJ Harvard International Law Journal Aus.JIL Australian Journal of International Law HMG/N His Majesty’s Government of Nepal AYBL Australian Yearbook of International Law HSC High Seas Convention ADPIL Annual Digest of Public International Law HHDC Himalayan Hydro Development Corporation ALCC Asian African Legal Consultative committee ICJ International Court of Justice ASEAN Association of South East Asian Nations IDA International Development Association AGOA African Growth and Opportunity Act ILM International Legal Materials Int.ABA Inter-American Bar Association ILC International Law Commission BYBIL British Yearbook of International Law ILA International Law Association CYIL Canadian Yearbook of International Law IBWC International Boundary and Water Commission CJIEL&P Colorado Journal of International Environmental ICCPR International Covenant of Civil and Political Law and Policy Rights CERDS Charter of Economic Rights and Duties of States IWL International Water Law CBR Canadian Bar Review ILWP International Water Law Project CLJ Cambridge Law Journal ISNT Informal Single Negotiation Test DJIL Denver Journal of International Law IWC International Watercourse DVC Damodar Valley Corporation IPP Independent Power Producer DPR Detail Project Report ILR International Law Reports EP&L Environmental Policy & Law IJC International Joint Commission EEZ Exclusive Economic Zone ICLQ International and Comparative Law Quarterly ECAFE Economic Commission for Asia and the Far East Int AmBA Inter-American Bar Association ESCAP Economic and Social Commission for Asia and IJIL Indian Journal of International Law Pacific Ise. LR Israel Law Review ECE Economic Commission for Europe IMF International Monetary Fund ELR the Environmental Law Reporter INHURED- Institute of International Human Rights, FDI Foreign Direct Investment Environment and Development GEF Global Environment Facility IWRA International Water Resources Association FAO Food and Agriculture Organisation KCC Karnali Co-ordination Committee GYBIL German Yearbook of International Law ISNT Informal Single Negotiation Text GATT General Agreement on Tariffs and Trade IPP Independent Power Producer GSP Generalised System of Preference IDA International Development Association GIELR Georgetown International Environmental Law LOSC Law of the Sea Conference Review LNTS League of Nations Treaty Series GIF Global Infrastructure Fund LDC Least Developed Countries GOI Government of India PCIJ Permanent Court of International Justice XVII XVIII MFN Most Favoured Nations WDM World Development Movement MOWR Ministry of Water Resources WRC Water Resource Committee MJIL Melbourne Journal of International Law WB the World Bank MDG Millennium Development Goal WSSD World Summit on Sustainable Development MD Managing Director WECS Water and Energy Commission Secretariat MIGA Multilateral Investment Guarantee Agency WWC World Water Council NAFTA North American Free Trade Agreement WI Water International NRJ Natural Resources Journal YBILC Yearbook of International Law Commission NEA Nepal Electricity Authority UDHR Universal Declaration of Human Rights SADC South Africa Development Community UNC United Nations Convention SCIP Standing Committee for Inundation Problems UNGA United Nations General Assembly STABEX Stabilisation of Export Earning UNCED United Nations Conference on Environment and NYBIL Netherlands Yearbook of International Law Development UNCIW United Nations Convention on Non- UNCHE United Nations Conference on Human Navigational Use of International Watercourses Environment NIEO New International Economic Order UNEP United Nations Environment Programme NEA Nepal Electricity Authority UNDP United Nation Development Programme NLR Nepal Law Review USAID United States Agency for International ODA Overseas Development Assistance Development OD Operational Directive UNTS United Nations Treaty Series OP Operational Policies UCLR University of Colorado Law Review BP Bank Procedure UNCTAD United Nations Conference on Trade and OAS Organisation of American States Development PMP Pancheswar Multipurpose Project USSR Union of Soviet Socialist Republics PPA Power Purchase Agreement UTLJ University of Toronto Law Journal Rs Rupees SAARC South Asian Association of Regional Cooperation SARI South Asia Regional Initiative SAGQ South Asia Growth Quadrangle SAPP South African Power Pool SMEC Snowy Mountain Electric Company SASE South Asia Sub-Regional Economic Cooperation TVA Tennessee Valley Authority VJIL Virginia Journal of International Law WTO World Trade Organisation WCD World Commission on Dams XVII XVIII Glossary Map of the Ganges Basin

The following terms are widely used in the south Asian Sub- continent and are defined for ease of reference:

1. Bigha: A unit for the measurement of land in Nepal. One Bigha is equal to 0.6772 hectare. 2. Crore: A unit of accounting equivalent to 10 million. 3. Cumec: Cubic metres per second (one cumec equals 8.107 acre-feet). 4. Cusecs: cubic feet per second. 5. One cubic metre equals 33.315 cubic feet. 6. 10,000 cubic metres equals one hectre-metre 7. One hectre-metre equals 8.107 acre-feet. 8. One cumec equals 35.32 cusecs. 9. One litre is equals to 0.22 gallons. 10. Kharif: Monsoon crop. 11. Lakh: A unit of accounting equals to one hundred thousand. 12. MAF: Million acre feet. 13. Rabi: Winter crop. 14. Rs: Rupees, the currency of India, Nepal and Pakistan, with a different value in each country. 15. The river known in India and Nepal as the Ganga is known in Bangladesh as the Ganges.

XVII XVIII - Preface III 2.4.1 Helmand River Delta Case 37 - Preface V 2.4.2 Trail Smelter Case 39 - Table of International Treaties VII 2.4.3 Lake Lanoux Case 41 - Table of Cases X 2.4.4 Gut Dam Case 43 - Acronyms XI 2.5 PCIJ and ICJ Decisions 44 - Glosory XV 2.5.1 River Oder Case 44 - Map of theGanges Basin XVI 2.5.2 The Diversion of the Meuse Case 47 - Table of Content XVII 2.5.3 Gabcikovo-Nagymaros Case 48 2.6 Scholarly Contributions 51 2.7 State Practices 54 Table of Contents 2.7.1 Boundary Water Treaty 57 2.7.2 The Colorado Treaty 59 2.7.3 The Nile Treaty 60 Chapter- One 2.7.4 The Indus Water Treaty 62 Introduction 2.7.5 The Columbia River Treaty 63 2.7.6 Lesotho-Highland Treaty 65 1.1 Significance of Water 1 2.7.7 Amazon Cooperation 66 1.2 Uneven Availability and Scarcity 4 2.7.8 Southern African Development 66 1.3 Emerging Principles 6 2.7.9 Treaty between Paraguay and Brazil 67 1.4 Challenges Ahead 10 1.5 Structure of the Book 13 2.7.10 The Treaty of Peace 68 2.7.11 Mekong River Treaty 69 Chapter- Two 2.7.12 Ganges River Treaty 70 Development and Codification of 2.8 The Impact of Water Issues on Bilateral Relations 71 International Watercourses Law 2.9 International Law Reform Efforts 77 2.9.1 The Helsinki Rules on the Use of the

2.1 Introduction 16 Waters of International Rivers, 1966 and ILA 77 2.2 Sources of International Watercourses Law 18 2.9.2 International Law Commission 80 2.2.1 Earliest Stage of Development of IWC 18 2.9.3 UNCIW, 1997 90 2.2.2 The United States 20 2.9.4 The Institute of International Law 95 2.3 Water Disputes 25 2.9.5 Some Other Institutions 96 2.3.1 Inter-State Water Dispute in India 25 2.10 Some UN Resolutions 98 2.3.2 Development in European States 32 2.11 Conclusions 100 2.4 International Judicial and Arbitral Decisions 36 XVII XVIII Chapter- Three 3.13 The Role of Joint Commissions in IWC 171 Equitable Utilisation 3.14 Conclusions 175

3.1 Principles of International Water Law 103 Chapter- Four 3.1.1 Absolute Territorial Sovereignty 103 Prospects and Problems of 3.1.2 Territorial Integrity 104 Nepalese Water Resources 3.1.3 Prior Appropriation 106

3.1.4 Equitable Utilisation 108 4.1 Introduction 180 3.2 The Rule of Equitable Utilisation in IWL 109 4.2 Potential of Nepalese Watercourses 183 3.3 Procedural Law 117 4.3 History of Water Resource Development: 3.3.1 The Duty to Consult and Negotiate 118 Indo-Nepal Relations 187 3.3.2 Discharge of Duty 121 4.4 Bilateral Relations with India 200 3.4 Origin and Development of Equity 125 4.5 Impact of Bilateral Relations in the Water 3.5 Types of Equity 128 Resources Sector 206 3.6 The Role of Equity in International Law 131 4.6 Negotiations on Water Resources Projects 208 3.6.1 Unjust Enrichment 134 4.7 Associated Multi-Disciplinary Complications 209 3.6.2 Estoppel 136 4.8 Problems and Prospects of Nepalese Water Resources 211 4.9 Projects of Bilateral Interest 217 3.6.3 Acquiescence 138 4.10 The Tanakpur Controversy 221 3.6.4 Ex Aequo Et Bono 139 4.11 Issues of Downstream Benefits 223 3.7 Equity for Scarce Resource Allocation 138 4.12 Regional Co-operation 235 3.7.1 Corrective Equity in Tradeing Arrangements 141 4.13 Problems and Prospects of Water Resources 3.7.2 Corrective Equity as Analysed to Development 240 Continental Shelf Allocation 143 4.14 Conditions for Funding Imposed by the World 3.7.3 Broadly Conceived Equity in Bank and the Other Donors 243 Continental Shelf Application 145 4.15 Conclusions 252 3.7.4 Broadly Conceived Equity in Conventional Arrangements 149 Chapter- Five 3.7.5 Common Heritage Equity 151 India's River Linking Project 3.8 Equity: an Integral Aspect of Sustainable Development 154 5.1 Introduction 257 3.9 Drainage Basins and Diversion of Waters 160 5.2 Magnitude of the Problem 258 3.10 The Right of a State to Utilise Water in its 5.3 Legal Issues Involve in the River Linking Project 263 own Territory 163 5.4 Concern of Neighbours 270 3.11 Water as a Political Weapon 167 5.5 Diversions Around the Globe 274 5.6 Conclusions 275 3.12 Recent Developments on Equitable Utilisation 169 XVII XVIII Chapter- Six Conclusions and Recummendations

6.1 Conclusions 278 6.2 Summary of Findings 278 6.3 Implications of water Scarcity 283 6.4 Changing Perspectives 286 6.5 Implications and Future Research 288 • Appendixes 292 - Appendix- 1 292 - Appendix- 2 304 - Appendix- 3 312 - Appendix- 4 320 - Appendix- 5 344 • Bibliography 354

•

XVII XVIII

Introduction / 1 2 / International Watercourses Law and Its Application in South Asia upon the individual.6 Thus it is quite natural for states, the 7 Chapter- One principal actors of international relations, to wish to safeguard their interests in fresh waters from the potentially diverging Introduction interests of other riparian states, and to reconcile their interests (insofar as this may be possible). In the present context of 8 burgeoning population sizes, and increasing demand for scarce 1.1 Significance of Water water resources, if this problem is not properly identified,

addressed and resolved, there is a strong possibility of conflicts Water is a key element for the existence of all kinds of life. threatening international peace and security.9 Early civilisations in Mesopotamia, Egypt, India and China emerged on the banks of different rivers.1 Water also has important implications for most religions of the world.2 The It may be useful at this point to provide a brief overview of the Ganges, for example, is considered holy by millions of Hindus. availability of water resources in its different forms. The Thus, not surprisingly, when Saint Narad met the great Indian volume of earth's water supply is approximately 326 million King, Yuddhistira, his greeting was directly related to water: "I cubic metres. Of this, 97.5% is salt water (with 71% of the hope your realm has reservoirs that are large and full of water, earth's surface being covered by seawater) and 2.5% is fresh located in different parts in the land, so that the agriculture does water (8 million cubic metres). Of this fresh water, 0.4% is on 3 not depend on the caprice of the Rain-God". the surface and in the atmosphere, 12.3% is underground, and 87.3% is in the polar ice caps and in glaciers.10 Freshwater Water was equally important in the western world; two resources are an essential component of the earth's hydrosphere millennia ago, the eminent Greek Philosopher, Pinder, said that and an indispensable part of all terrestrial ecosystems. The 4 the "best of all things is water". Italian scholar Leonardo da freshwater environment is characterised by the hydrological 5 Vinci said "water is the driver of nature." Life is impossible cycle,11 including floods and droughts, which in some regions without water, and it has been reported that the human body consists of between 60 to 80% water by weight, depending 6 S. C. McCaffrey, The Law of International Watercourses: Non- Navigational Uses, Oxford University, 2001, p. 3. 7 Lotus Case in PCIJ series A/B vol. 3, p. 17 & the Corfu Channel Case in ICJ Reports 1949, p. 35. 1 D. A. Caponera (ed), The Law of International Water Resources, 8 Supra note 6, p. 5, the population of the world in 1950 was 2.5 billion; Rome: Food & Agriculture Organisation (FAO), Legislative study No. it has doubled in less than forty years and the United Nations forecasts 23, 1980, p. 6. that it could reach some 9 billion by 2050. 2 A. K. Biswas, "Water for Sustainable Development of South and 9 V. Narayan, "‘Water’ the Oil of Next Century" TERI Newswire III, Southeast Asia in the Twenty First Century” in A. K. Biswas & T. (19), New Delhi: October 1997, pp. 1-5. Hashimoto, (eds), Water Resources Management Series 4: Asian 10 P. Wouters (ed), International Water Law: Selected Writings of International Waters: From Ganges -Brahmaputra to Mekong, Oxford Professor Charles B. Bourne, the Hague: Kluwer Law, 1997, p. 108. University, 1996, p. 5. 11 A. Dixit, Basic Water Science, Kathmandu: Nepal Water Conservation 3 Ibid. Foundation, 2002, pp. 2-20. It has been reported that water evaporates 4 Ibid. from the sea, rivers, and streams, and also a large amount of water 5 Ibid. enters the atmosphere by transpiration from plants. The same water Introduction / 3 4 / International Watercourses Law and Its Application in South Asia have become more extreme and dramatic in their Eventually, it appears that until the full regime is developed on consequences.12 the issues, groundwater is covered by the rules of equitable utilisation adopted in the UN Convention on the Non- 17 The water going out from the surface of the earth must come Navigable Uses of International Watercourses (UNCIW). back in equal amounts - a perpetual cycle with no beginning, Regardless of the definition of a watercourse (WC) in the 1997 18 middle or end. In other words, the watercourse system is an UN convention, which includes groundwater, there is still a element of the hydrological cycle, which consists of the lot that needs to be done in order to obtain an agreeable formula evaporation of water into the atmosphere, chiefly from the on the issue. With regard to the lack of freshwater, Falkennar 19 oceans, and its return to earth through precipitation and has distinguished four different causes of water scarcity : condensation.13 The volume of groundwater is large and covers aridity, drought, desiccation, and water stress. a significant quantity of the freshwater system,14 however, the international community (IC) has not agreed upon a set 1.2 Uneven Availability and Scarcity framework of rules on groundwater and there are several issues that need to be resolved before such rules will be acceptable to In order to accrue optimum benefits from an International 15 all states. As McCaffrey rightly observed, the area of Watercourse (IWC) it must be developed in a holistic, groundwater is still in a primary and inchoate stage: integrated manner, considering the whole length of a "as such, the law of international groundwater may only watercourse as a unit. This fact itself highlights the significance be said to be, in the embryonic stages of development, .. of riparian co-operation in order that maximum benefits can be .. but this situation should prevail only until a special accrued from an IWC due to its geographical and hydrological regime can be tailored for international groundwater".16 circumstance, e.g., a good site to construct a reservoir lies in one country (Nepal), but such augmented water can be used in another country (India); flood damage can be prevented (India falls as a result of rain, snow and precipitation, which flows over the surface to percolate into the ground, ground water emerging into and Bangladesh), and hydropower plants can be constructed in streams and moving within aquifers. In this sense, the relation of other countries (in Nepal and India). Geography and hydrology ground water and surface water is inextricably interlinked. Thus, the determine this fact. In fact Nepal owns magnificent gorges total quantity of water has remained stable over the billions of years. 12 N. A. Robinsion (ed), IUCN Environmental Policy & Law paper No where high dams can be built and the Himalayan waters stored, 27: Agenda 21: Earth's Action, New York: Oceana Pub. , 1993, p. 357. but such sites are not available in India, Bhutan and 13 Supra note 11, p 20. 14 Ibid. p. 6, 97% of freshwater remains as groundwater. 15 Supra note 10, state practice suggests different practices on ground water, for example, the USA and Canada deliberately rejected the 17 Ibid. concept of the unity of a drainage basin for which boundary waters 18 "Watercourse" means a system of surface waters and groundwaters were separated from tributary waters flowing into boundary waters. contributing by virtue of their physical relationship a unitary whole and Although, equitable utilisation is the applicable rule on groundwater, normally flowing into a common terminus. Article 2 (a) of 1997 the Helsinki Conference placed groundwater at the head of the lists of UNCIW, 36 ILM (1997), p. 700. subject that it recommended for further study by the ILA. pp. 299, 274 19 R. Clarke, Water: the International Crisis, London: Earthscan Pub., & 269. 1991, p. 2, as quoted to Malin Falkner from Stockholm's Natural 16 Supra note 6, p. 433. Science Research Council. Introduction / 5 6 / International Watercourses Law and Its Application in South Asia Bangladesh.20 Therefore, cooperation between the riparian development of international law in this area. In the next states is essential. chapter, a critical analysis of some of the more important of The regulation of freshwater resources did not receive much these decisions will be provided. attention in the international arena prior to the 1950's due to the As stated above, the use of water increases in comparison to its relative lack of scarcity, fewer international disputes over the availability, due to alarming population growth and use of water, relatively low levels of use and so forth.21 unsustainable use of water, e.g., by polluting it, which has However, during the latter half of the nineteenth century, contributed to its scarcity. If the issues cannot be resolved in efforts were made to establish the rule of free navigation of time, it may reach a level, which threatens the concepts of rivers. Such rules originated with a (Revolutionary) French peace and security enshrined in the Charter of the United 25 decree22 of November 16, 1792, which opened the Rivers Nations. It is because water can neither be substituted nor Scheldt and Meuse to the vessels of all riparian states. The produced. Whilst some disputes have been resolved, many Treaty of Vienna of 1815,23 along with many navigational more remain, and it is indeed a real challenge to the treaties between nations was based on this decree.24 The Treaty international community and international law to resolve these resolved the long and complex disputes on navigational rights disputes to the satisfaction of the contesting states. The issue of European states. However, even at this stage, there were has been further exacerbated by the increases in daily water disputes between countries concerning the use of freshwater. consumption, which is the inevitable result of enhanced 26 The efforts to settle them, which will be analysed at the standards of living. appropriate juncture of the book, indicated quite clearly the relevance of the issue, and laid much essential jurisprudential 1.3 Emerging Principles groundwork, which has been developed since 1950. A few instances of international disputes over international rivers The fundamental area of this study will be equitable and include the dispute relating to the River Helmond in 1872 and reasonable use of an IWC between riparian states. This book 1905 (between Afghanistan and Persia), the Nile (between will argue that the principle of equity and in particular the rule Egypt and nine other North African states) and the Colorado of equitable utilisation, among others, will be the best way of (between Mexico and the USA). At the end of the nineteenth- resolving disputes involving IWC’s. The case of Nepal, India, century there were numerous conflicts relating to shared water Bangladesh and Bhutan will be dealt with in view of equitable resources in India, Germany, Austria, Switzerland and the legal principles. It should be noted that the topic of pollution is U.S.A. Municipal court judgements of these and other states, not directly addressed, although there are occasions where the have significantly contributed to the codification and concepts “spill over”. For example as discussed below, the

20 D. Gyawali, “Himalayan Waters: Between Euphoric Dreams and Ground Realities” in K. Bahadur & M. Lama (ed), New Perspective on 25 D.J. Harris, Cases and Material on International Law, London: Sweet India-Nepal Relations, New Delhi: Har-Ananda Pub., 1995, p. 256. and Maxwell, 1998, pp. 1048 – 1067: Article 1 of the Charter 21 L. Caflisch, "Regulation of the Uses of International Waterways: The envisages settling every dispute by pacific means, enhancing Contribution of the United Nations" in M. I. Glassner (ed), The United international cooperation and friendly relations between states and Nations at Work, Westport: CT, Prager, 1998, p. 4. Articles 33-38 chart out the procedure of pacific settlement of disputes. 22 Supra note 10, p. 110. 26 A. Tanzi and M. Arcari, The United Nations Convention on the Law of 23 Supra note 1, pp. 29-30. International Watercourses: A Framework for Sharing, the Hague: 24 Supra note 10, p. 110. Kluwer Law, 2001, p. 4. Introduction / 7 8 / International Watercourses Law and Its Application in South Asia application of no harm rule for the North American context infrastructure within all four of the member states of the South involves discussion of pollution and analyses the failure of the Asia Association for Regional Co-operation (SAARC).29 The no harm rule in disputes between the US and Canada. The advantages identified so far, are flood control, increased research will consider and evaluate the existing law on IWC, volume of water for irrigation (downstream benefits), analyse issues of Nepal’s IWC and its link to regional issues, navigation, recreation and miscellaneous other benefits.30 with the objective of assessing current obstacles and making Tremendous harm is caused annually by flooding31 and recommendations for its resolution in the spirit of international drought, which could be prevented by international co- water law (IWL). However, the nature of the particular operation, and the scenario could be reversed by adopting new problems facing Nepal and Bhutan are different from those of measures for mitigating and averting flood water. International other countries. From their point of view, the main problem is co-operation on the use and sharing the immense benefits of not the lack of water but how to share and allocate the benefits these resources has been duly acknowledged but divergence of of these abundant water resources, with particular reference to interests, suspicion, distrust and non-cooperation have severely India. Whereas, the issues of other riparian states i.e., India and prohibited such opportunities. There is a huge potential being Bangladesh, are how to augment the water in the dry season wasted, that could be utilised by co-operation.32 and allocate it, and also how to avert and mitigate the affect of flooding in the monsoon season. In order to fulfil the needs and aspirations of the people, use of these abundant resources is urgently required. It can only be Nepal has immense hydropower potential of 83,000 megawatts changed by the states themselves. In the past, few projects were (MW). Apart from this, these waters can be used for several developed, and even these projects could not yield equitable purposes simultaneously27 e.g., drinking, irrigation, and reasonable benefits to the parties. What is more, navigational, industrial and other uses. So far, little benefit, has implementation of previous agreements was not carried out been taken28, that is to say, vast resources are still not being tapped. The reasons for this are lack of capital, technology and 29 Ibid. p 393, there are four states Bhutan, Nepal, India and Bangladesh riparian objections. The huge water resources available to within the SAARC Quadrangle. Nepal have not been beneficially utilised so far. Worse still, in 30 Ibid. p 465. recent years considerable harm has occurred during the drought 31 Staff, “Flood Havoc” , The Independent, 5 September 1988: the entire and monsoon seasons not only in Nepal, but also in India and landscape looked as if it had been hit by a brown snowstorm, with just Bangladesh, which have been severely affected by flooding, a few village houses and same trees rising above it. One whole bank of the Ganges was completely submerged, which made the other side of with huge loss of life and property. It is asserted, however, that the river appear to be the coastline” quoted by an observer. Also see if arrangements could be made for the fully beneficial use of staff, “Flood in south Asia” The Guardian, 5 September 1988, 25 these resources by all states concerned, it would be a milestone million people were left homeless, more than a thousand died as a event for both the alleviation of poverty and the development of direct result of the floods, and three million tons of rice were lost. One villager, who had taken refuge on his roof, described other hardships; “I stay awake through the night to protect my children from deadly 27 National Planning Commission (NPC), "The Ninth Plan, 1999-2004”, snakes, which often climb on the roof.” Kathmandu: NPC, (1998), p. 458; also see B. G. Verghese, Waters of 32 B. Subba, Himalayan Waters, Kathmandu: Panos South Asia, 2001, p. Hope, New Delhi: Oxford & IBH Pub., 1990, p. 337. 225; also see S. P. Subedi, “Hydro-Diplomacy in South Asia: The 28 Ibid. Less then 19% people have access to electricity, only 45% Conclusion of the Mahakali and Ganges River Treaties” (1999) 93 irrigation facility has been provided so far. AJIL, pp. 953-962. Introduction / 9 10 / International Watercourses Law and Its Application in South Asia pursuant to the provisions of the treaties. As a matter of fact, 1.4 Challenge Ahead from these experiences Bhutan, Bangladesh and Nepal are very cautious in dealing with India with regards to sharing of the This book aims to discuss and evaluate the present state of benefits from these resources. The situation will be described in IWL. It will also try to link the issue to Nepal's circumstances, chapter four. The reasons are obvious, India and Nepal had in which water sharing and taking benefits therefrom must be concluded two treaties in the mid-1960’s, primarily for according to the rules of international law. In principle, irrigation, flood control and miscellaneous purposes including international law is equally applicable to all nations. In practice, the Kosi project and the Gandak project. The Nepalese people economically weak nations, such as Nepal or Ethiopia are and the political parties alleged that these were carried out treated unequally. For instance, Egypt is able to use most entirely for Indian benefit, ignoring Nepal's rights to these portions of the waters in the Nile, at the same time, Ethiopia resources. In other words, it was a ‘sell out’ of the natural having significantly contributing waters in Blue Nile (main 33 resources. Similarly, due to the construction and operation of tributary of the Nile), is prohibited from using its equitable the Farakka barrage, at the border between India and share of waters in the same river by the objections and threats Bangladesh, on the Ganges River, the barrage has caused of former. In a similar way, Nepal is not able to use its own severe adverse impact to Bangladesh and planted the seeds of share of water because of Indian objections stating that such distrust and suspicion toward the former. Bhutan also appears new use would impair its prior use. India has developed the not satisfied with the outcome of past agreement. As will be Farakka barrage. Egypt developed the Aswan dam (with Soviet described later, this project seriously caused adverse affects in Union support). China is developing the Three Gorges projects 34 Bangladesh for a long time period. from its own resources, in spite of severe criticism from international spheres.36 Of course, dams are often criticised for Water resources are the only substantial available natural political and environmental considerations unrelated to riparian resources in this region besides coal and gas, and there is an issues. In these cases international assistance has not been urgent need to utilise these water resources expeditiously for forthcoming. International cooperation has not been provided to the benefit of the people of the region. There are bottlenecks enable the implementation of projects for example in the preventing the achievement of following cases, Narmada in India, and the Southern Antolia this objective, which must be overcome by enhancing bilateral project in Turkey. There is also a current conflict over the 35 as well as regional co-operation. ongoing supply of drinking waters from Malaysia to Singapore. In order to develop such water projects, poor countries do not have resources, they need international or bilateral co-operation in money, technology and skilled manpower. Foreign donors seek clearance from other riparian states and these riparian 33 B. G.Verghese and R. R. Iyer (eds), Harnessing the Eastern states object to such a project stating it will affect them Himalayan Rivers: Regional Co-operation in South Asia, New Delhi: Konark Pub., 1993, pp. 200-2003; also see B. C. Upreti, The Politics of adversely. In many cases, donors cancel funding. Therefore, a Himalayan River Waters, New Delhi: Nirala Pub., 1993, pp. 98-118. weak and poor country does not have its own resources and 34 M. Asfuddowalah, “Sharing of Tranboundary Rivers: The Ganges Tragedy” , M. I. Glassner, (ed), The United Nations at Work, Westport 36 www.internationalwaterlaw.org "Three Gorges Dam". Dams are not CT: Praeger, 1998, pp. 215-218. considered to be a part of sustainable development because of their 35 Supra note 27, pp. 390-393. adverse affect on ecology and indigenous people. Introduction / 11 12 / International Watercourses Law and Its Application in South Asia donors refuse to provide assistance on the basis of such the non-navigational use of boundary and transboundary objections. Suggestions are made in this thesis on how to watercourses, although there is some link with Nepal and resolve such a discriminatory system. There are a few Bhutan's right of access to and from the sea through co- instruments such as debt relief mechanisms and Millennium operative development on the Ganges river, which will also be Development Goals, which favour poor, geographically 37 considered. handicapped and vulnerable nations. The adoption of similar adequate arrangements specific to IWCs will be recommended. The danger in scarce water supply cannot be underestimated. Arguably, however, the principles of equity and the rule of equitable utilisation could be the best weapons to tackle these Overuse and scarcity of water resources further puts pressure sensitive issues. on the supply, quantity and quality of freshwater, and has already added to the number of wars throughout the world in 39 In order to implement the provisions of international law, there the twentieth century. If this issue is not settled to the needs to be a treaty or agreement between watercourse states,38 satisfaction of all nations and communities, conflicts are 40 and the political will to implement such a treaty in the spirit of inevitable in the future. As reported in the past, rivers not only 41 good neighbourliness. Unless these states agree with each aggregate humans, they also separate them. That is to say, other, the rules of international law cannot be properly there are good examples of cooperation in sharing the benefits implemented. The real problem can only be overcome by from IWC, at the same time there are several conflicts, disputes cooperative and good neighbourly relations. International law and even wars for the same reason. itself cannot work out any solutions if the states themselves are reluctant to co-operate. In the development of IWL, 'soft law', Clarke has argued that conflicts on IWC remain only in the that is to say, declarations, resolutions and so on, although not developing world. For example, in Europe there are four shared legally binding internationally, have some moral or political rivers, which are effectively regulated by more than 175 42 compulsion, and have played a crucial role in the codification treaties. Obviously, for developing countries, which lack and development of international law. In this research, capital, technology and skilled manpower, co-operation from examples of both hard and soft law will be juxtaposed in regard other watercourse states is imperative. As will be seen in the to the equitable utilisation of watercourse. The main area to be forthcoming chapter, none of the donor agencies, whether covered in this study will be limited to equitable sharing and bilateral and multilateral, are prepared to finance any project until they have positive signals from all other watercourse

37 21 ILM 1982, p. 1295, Article 148-participation of developing states activities in the area protect the special interest of the landlocked and geographically disadvantaged nations. 38 For example, in order to enjoy the right of right to access to and from 39 Supra note 6, pp. 272-73. Israelis and Arabs fought a war on water the sea to the land-locked states Article 125 of the UNCLOS III (1) issues in 1967 and the danger lies in many areas ahead. A World Bank provides the authority, whilst (2) states that 'the terms and modalities official stated in 1995: 'the wars of the next century will be over water'. for exercising freedom of transit shall be agreed between the land- 40 Supra note 9, p. 1-4. locked states and transit states concerned through bilateral, sub- 41 Supra note 26, p. 4. regional or regional agreement', in 21 ILM (1982), p. 1290. 42 Supra note 19, p. 91-92. Introduction / 13 14 / International Watercourses Law and Its Application in South Asia states in connection with the proposed project.43 My working how other states are doing in similar circumstances will be experience in this regard, particularly in the Nepalese context, assessed. Moreover, how other states resolve the issues, how is discussed below. conflicts are averted and co-operation achieved, and how they influence the Nepalese issues will be evaluated. 1.5 Structure of the Book Chapter Five critically described the legality of India's River Following this introduction, Chapter Two deals with the Linking Project (RLP), its national and international dimension development and codification of IWL. It evaluates state and its requirement to get rid from the recurring flood, drought practice, judicial pronouncements, and scholarly writings, in and famine phenomenon in India and Bangladesh. Chapter Six bilateral as well as in multilateral dimensions. Evolution of will be a conclusion based on the evaluation, assessment and these principles, their far-reaching implications and critical the critical analysis of the research. It also will present analyses of these principles will be taken into consideration. conclusions drawn from all available materials, and suggest and Chapter Three deals with the concept of equity, its identify the discrepancies, anomalies and shortcomings of the development, the emerging concept of equitable utilisation in present system and recommend a better way out for the shared natural resources, and the jurisprudence of the resolution of conflicts in a reasonable, sustainable and equitable International Court of Justice (ICJ) and its predecessor the way. Implications of the research for the areas of human rights, Permanent Court of International Justice (PCIJ), in the area. the environment and IWL will be provided. The main theme of The use of equitable utilisation in a shared natural resource has the book will be the application of equity to resolve issues been carried out to take account of the interests of all states pertaining to the allocation and uses of these resources. equally and without discrimination. It reconciles divergent However, the application of equity is itself a complicated task needs so as to ensure a fair deal. Apart from this, several courts, and there is no hard and fast rule on how it can apply to any such as the ICJ, PCIJ and the decisions of numerous arbitration particular watercourse. A critical analysis of its application and tribunals and national courts in regard to the application of how states have resolved conflicts in similar situations to that equity and equitable sharing and utilisation, will be analysed. of India and Nepal and other neighbours will be made. A Chapter Four deals with IWL and its application in the Indo- critical analysis of four principles of international water law Nepal context. In this chapter, Nepal’s past experience in water will be provided, e.g., territorial sovereignty, territorial projects with her neighbour will be critically dealt with and integrity, prior appropriation and equitable utilisation. I have selected equitable utilisation as the best rule for its wider 43 D. Goldberg, "World Bank Policy on Projects on International Waterways in the context of the International Law Commission" in G. acceptance by the international community. H. Blake, W. H. Hildsley, M. A. Pratt, R. J. Ridley &H. Schofield (eds), The Peaceful Management of Transboundary Resources, To sum up this chapter, it can be stated that the earth, nature Dordrecht: Graham & Troatmat/Martinus Nijhoff, 1995, pp 153-165: and the existence of living beings is impossible without Bank's Operational Directives (OD) 7.50, an internal policy document required consent from a riparian states on the proposed project in an freshwater and the fact is that the availability of water is international watercourses in order to provide lending by the Bank. uneven, scarce and finite. The total availability of freshwater Other donors have adopted the same approach.

Introduction / 15 16 / International Watercourses Law and Its Application in South Asia has remained the same for millions of years. An United Nations studies indicates that by the year 2025, 50 % of the people in developing worlds will be lacking in water overall, and in west Asia, scarcity will reach 90%.44 It shows the gravity of the problem, for which international law and modern scientific innovations have to play a very constructive role in order to resolve the conflicts arising out of it, and eliminate the root cause of the problem in a reasonable and equitable way. The research will strive to find such a resolution within the rules of equitable utilisation. •

44 P. Brown, “Scarcity of Freshwater”, The Guardian, 23 May 2002, p. 3. 16 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 17 surprisingly, led to conflict amongst communities and nations. This was exacerbated in the areas where water was already Chapter- Two scarce.

Development and Codification of The International Law Commission (ILC), an official body of International Watercourses Law the United Nations, drafted and adopted the UNCIW. Several principles enunciated in it will be critically assessed, by considering the diverging interests and views of states and their 2.1 Introduction representatives, including the views of the Special Rapporteurs.3 The availability of and demand for water was not a problem until the 1950s except in a few countries with arid and semi- There are more than 300 international watercourses (IWC), arid climates.1 Thus, there were very few conflicts and disputes which are regulated by more than the same number of treaties. in this area except in the western part of the United States and The fact is that the practices of states are as different as the some parts of the Middle East.2 In fact, the development of issues of each watercourse are unique, and require different and IWL is a recent phenomenon in international relations. As a special arrangements. A few representative treaties will be consequence of the increase in various competing uses, giving evaluated, with an appraisal of the principles associated with rise to increasing disputes and conflicts, the necessity for laws these treaties. In the process of the resolution of disputes that to resolve the issues was direly felt. In this context, various emerged between states, judicial pronouncements by the PCIJ, state practices, concepts and rules emerged. However, the the ICJ, federal courts and arbitral tribunals will also be development and codification of such rules were undertaken on discussed. In order to tackle the issues efficiently, a separate a piece-meal basis, not based on a holistic framework or discussion and assessment of each segment of the sources of approach. international law, as stipulated in article 38 of the ICJ Statute, i.e., state practice, judgements of courts, international customs As the human powers to control, divert and use the mighty and writings of reputed publicists, will be carried out.4 rivers through scientific innovation increased, competing as well as complementary uses, such as, recreation, irrigation, hydropower, industrial, and drinking water have put even 3 36 ILM UNCIW, 1997, pp 700-720; also see II (1) YBILC (1994), pp. 88-135. greater strains on finite resources. As a result, hundred of dams 4 Article 38 of ICJ Statute states: “(1) The court, whose function is to and reservoirs have been constructed and water delivered far decide in accordance with international law such disputes as are distances to where it was needed; that is to say, technology submitted to it, shall apply: helped undertake mammoth water projects. Such activities, not a. International conventions, whether general or particular, establishing rules expressly recognised by the contesting states; b. International customs, as evidence of a general practice accepted 1 L. Caflisch, "Regulation of the Uses of International Waterways: The as law; Contribution of the United Nations" in M. I. Glassaner (ed), The c. The general principles of law recognised by civilised nations; United Nations at Work, Westport, CT: Prager, 1998, p. 4. d. Subject to the provisions of Article 59, judicial decisions and the 2 S. C. McCaffrey, The Law of International Watercourses, Oxford: teachings of the mostly highly qualified publicists of the various Oxford University, 2001, pp. 8-15. nations, as subsidiary means for the determination of rules of law. 18 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 19 In the light of water as essential requirement for people, the agreements, and writings of the publicists greatly inspired and difficulty of access to water and the problems associated with influenced the resolution of most of the conflicts. Ultimately, its scarcity, a very careful and prudent resolution of the issue is on numerous occasions, disputes were resolved amicably and of the utmost need in order to maintain smooth relations peacefully by accommodating divergent interests, but some of between riparian states. As has been analysed, the issue by its them remain unresolved.7 Resolution of the disputes was complex nature requires a prudent and balanced resolution carried out in accordance with the concepts of co-operation and reconciling the diverse interests of contestant states.5 good neighbourly relations, based on equity, which were later largely followed by the other states in their bilateral relations 2.2 Sources of International Watercourses Law and appreciated by the international community. Efforts will be concentrated on assessing and evaluating the far-reaching 2.2.1 Earliest Stage of Development of IWC consequence of these achievements and their implications for the development of IWL. The quantum of water is the same as it was three billion years ago.6 At the same time, its uses have gone up to such a point As stated earlier, scientific innovation has enabled humans to that to keep a balance between demand and supply has become undertake water diversion to far away places as exemplified in a formidable task. Furthermore, such waters have also become the western part of the United States, Australia, the then Soviet strategic resources for several states in order to attain the socio- Union, Israel and several other parts of the world where 8 economic and political aspirations of their people as well as the grandiose diversion works have been undertaken. In the best tool for bargaining with other riparian states. The other Middle-East (ME), a complex and huge project, 'the peace reason, however, for the huge increase in the use of the waters pipeline' has been proposed, which is supposed to deliver water is the rising prosperity in human lives along with the rapid from Turkey to all Middle-Eastern countries including Israel. population growth. This exacerbates the problem further, and Apart from this, in Libya, there is an ambitious plan for the consequence is obvious, more stress on water supply. collecting and diverting water in a pipeline, also called a 'great man-made river', which stretches from deep aquifers, so called As a result of misuse and overuse of water, the quantity “fossil” water. This is intended to augment the seriously available as well as the quality has been found to be decreasing depleted groundwater supplies in the coastal region, by in several parts of the world. Consequently, it has given birth to bringing water from the hundreds of desert wells at Tazirbu and 9 several conflicts. Earlier development in the area by the courts, Saria. Nevertheless, with such new developments and tribunals, bilateral as well as multilateral conventions, customs, innovations, the formulation of particular rules that could

(2) This provision shall not prejudice the power of the court to decide a case ex aequo et bono, if the parties agree thereon.” 5 R. Clarke, Water: The International Crisis, London: Earthscan Pub., 7 C. B. Bourne, "The Primacy of the Principle of Equitable Utilization in 1991, p. 92. the 1997 Watercourse Convention" in XXXV CYBIL, (1997) pp. 215- 6 A. Dixit, Basic Water Science, Kathmandu: Nepal Water Conservation 231. Foundation, 2002, p. 6: “the total supply [of water] neither grows nor 8 P. Wouters (ed), International Water Law: Selected Writtings of diminishes. It is believed to be almost precisely the same now as it was Professor Charlse. B. Bourne, the Hague: Kluwer Law, 1997, pp. 221- 3 billion years ago. Endlessly recycled, water is used, disposed of, 241. purified and used again.” 9 Supra note 2, p. 10. 20 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 21 address new circumstances and issues always remains a huge. As a result, there were, and still are, water disputes in challenge to the international community. which a lot of norms, concepts and ideas have been developed The uneven availability, scarcity, misuse and overuse of the in resolving these issues. Intriguingly, as the disputes went to water, further confronted by the increasing demand of a rapidly the Supreme Court, they were resolved by the application of increasing population will arguably make water the issue of the federal as well as international law, considering the dispute as twenty-first century.10 It should not be misunderstood that the similar to the disputes between two sovereign nations. As will scarcity of fresh water only causes conflicts between sovereign be seen in the forthcoming sub-topic, such decisions have independent states. Similar problems also exist within states, as played a significant role in the development of the area where inter-state water disputes within a federal structure. As a matter the main thrust of the decisions has been ‘equitable of fact, most of the legal development of this area has been apportionment'. enriched by the inter-state disputes resolution mechanisms in the United States, India and other federal states. The In the Kansas v. Colorado cases of 1902 & 1907, Kansas, the significance of these decisions is of far reaching consequence in downstream and prior user, blamed Colorado for violating the the development and codification of IWL. These decisions can fundamental principle of “use your own without destroying be considered as a foundation of the rule of equitable utilisation another’s legal right” in the Arkansas River.12 Colorado in the use of IWCs.11 contested saying that because the river originates and flows in its territory, it has full authority to use its water without caring 2.2.2 The United States about the effects outside its border. The court in its judgement applied international law principles. The arguments of both The decisions of the US Supreme Court in water disputes states solely relying on their own respective water laws were between states have provided a rich body of jurisprudence in refused. The court decided that 'equality of right and equity the area of equitable utilisation. (In inter-state disputes, the US between two states forbids any interference with the present 13 Supreme Court has used the term ‘equitable apportionment’ withdrawal of water in Colorado for the purpose of irrigation'. whilst in international relations the US has used the term The reasons given for the decision were that the court wanted to ‘equitable utilisation’. There is no fundamental difference ensure that justice was done to both states in the given between these terms). To analyse all these decisions is not situation. Basically, the judgement upheld the rule of equitable possible. However, a quick survey of some representative apportionment of the waters, refusing their reliance on 'prior decisions is essential. In the United States, each of the 50 states use' and the 'Harmon Doctrine'. The Harmon Doctrine is based enacts its own water law. Most such laws hold the view that the on the 1896 legal opinion of Attorney General Harmon to the water resources are the wealth of the state through which they Secretary of State in relation to water sharing issues with flow. For the protection of their existing use, when such use Mexico-US. Harmon stated that the US had full authority to the conflicts with other states, each state tends to rely on its own US over water that flows in its territory without regards to its law. The reasons are apparent. The western part of the USA is effect on Mexico. The court regarded prior use as only one of an arid or semi-arid area where water is scarce and demand is the factors that had to be considered in determining whether or not a certain use is equitable and not the only determining

10 Ibid. p. 64. 12 185 U.S. 125 (1902), p. 146. 11 Ibid. p. 228. 13 206 U.S. 46 (1907), pp. 44-118. 22 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 23 factor. When the case again came to the court later in 1907, the achieving it is to secure equitable apportionment court reinforced the rule of equitable apportionment, without quibbling over formulas."17 advocating that both states were entitled to an equitable share of the flow, and this was the best way to allocate their Moreover, Justice Oliver Wendell Holmes provided that, respective shares.14 “a river is more than an amenity; it is a treasure. It In the 1921 case of Wyoming v. Colorado, the latter diverted offers a necessity of life that must be rationed water from the Laramie River within its territory, and the among those who have power over it”.18 former sought to restrain the diversion on the ground that intra- basin transfer is illegal and would hamper its prior use.15 The essence of the adjudication was to reconcile the interests of Colorado contended that it had full right to use its river water as both states within the parameter of equitable apportionment. it pleased, based on the Harmon Doctrine. Wyoming contested Therefore, New York was allowed the diversion of a certain the legality of the diversion and maintained that its prior use quantum of water with conditions, as the best way to must be respected. In a nutshell, the dispute was based on the accommodate the interest of each party. principle of prior appropriation and territorial sovereignty. The Court, in its judgement, rejected the conflicting arguments of In the Colorado v. New Mexico dispute of 1975 over the both states and provided that even though the constitutions of allocation of the river's waters, where the latter (downstream) both states protect their respective prior uses, the basic rule in was depriving the former of using the waters, the court question was just and equitable utilisation. Therefore the court maintained that the applicable rule in the dispute is equitable allocated the water to both states based on this principle. In the apportionment.19 That is to say, this conflict was also adjudged later case of 1940, where Wyoming alleged that the Colorado by the rule of equity, justice and fairness. The other more diversion works appropriated more than its share, the complicated, contentious and long running dispute was that of contention was refused by the Supreme Court stating that the Arizona v. California, where in 1963 the Supreme Court held diversion, unless it inflicted injury on the former, was lawful.16 the view that 'equitable apportionment' is the major rule of adjudication of the issue in question.20 Beside this, there are In the New Jersey v. New York dispute of 1931, each state was several other judgements in the United States that have claiming 'prior use' and 'use your wealth as you please' enunciated and applied the same principles of adjudication. As concepts. The former sought to restrain the diversion of the demonstrated earlier, these judgements greatly influenced many water of the Delaware River, whilst the latter argued that it had areas of the world in the resolution of inter state water conflicts legal right to use its resource as it liked. The court held: or conflicts between sovereign nations, thereby integrating as

"both states have real and substantial interests and 17 Supra note 2, p. 326; also see 283 U. S. 336 (1931), pp. 1104-1109. rights over the waters of a river that must be 18 283 U. S. 336 (1931), p. 343. 19 459 U. S. 176 (1975), p. 332-335. reconciled as best they can. The best way of 20 F. J. Trelease, "Arizona Versus California: Allocation of Water Resources to People, States and Nations" in P. B. Kurland (ed), 14 Ibid. Supreme Court Review, Chicago: The University of Chicago, 1963, 15 259 U. S. 419 (1921), pp. 430-470. pp. 158-205; also see 282-283 U. S. (1931), pp 1155-1171; also see 16 308-310 U. S. 84 (1940), p. 960. 296-298 U. S. 80 (1935), pp. 1331-1339. 24 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 25 customary certain norms for state practices including treaty such diversion would cause injury.24 The development and regimes. enunciation of new principles in relation to sharing of waters and the benefit therefrom are highly innovative in the United In Connecticut v. Massachusetts, 1931, the latter was permitted States. McCaffrey advocated that the decisions of the courts of by the Secretary of War to divert and impound floodwater the United States were milestones in the development of IWL.25 during the monsoon season, i.e., May to June. Connecticut These decisions contributions are twofold, in that they have had challenged the permission on the ground that it would impair both national arrangement and international impact on the navigation, fish stock and farm land. Massachusetts denied management with its upstream and downstream riparian their contention. The court found that the disputes between relations. Each exercise (negotiation, court decision, etc) had states over diversion of water from streams flowing through produced a new example of co-operation. From the Harmon both territories must be settled on the basis of equality of right. Doctrine we have moved to the principle of equitable That did not mean that there must be an equal division of apportionment and equitable utilisation.26 waters, but meant that the principles of equal right and equity shall be applied, having regard to both interests.21 In the end, 2.3 Water Disputes Connecticut’s practice was not found to be against the interests of Massachusetts but rather consistent with the principles. 2.3.1 Inter-State Water Disputes in India However, it is not my argument that these judgements should be treated as a precedent for all nations. They could rather be In India, there are many inter-state disputes in relation to the regarded as a catalyst and references for the resolution of water sharing and allocation of the water of the rivers that flow along conflicts.22 common boundaries. Most of the conflicts have been resolved through the decisions of the relevant Water Tribunal. However, Besides the Supreme Court, the involvement of the American some conflicts remain unresolved.27 Nevertheless, the Congress, Federal Government and the conclusion of Inter- resolutions of the disputes have been based on equitable State compacts have made possible the resolution of these apportionment and efficient use of the waters. It will be useful disputes within the US. In all deliberations, reasonable and to consider a few leading cases. equitable apportionment of waters between the co-basin states was a norm that has been widely recognised and applied.23 In the Krishna River Water dispute, 196128 a commission was With respect to diversion, as distinct from apportionment, constituted following a failed intervention by the central slightly different reasoning was used. For example, Colorado was prohibited from diverting water in the future without court 24 Ibid. permission, even though, it had not been proved that at the time 25 Supra note 2, p. 228. 26 Ibid. pp. 221-228. 27 There is still a dispute between the Karnataka and Tamil Nadu with regard to the sharing of Cauvery River waters. The federal government 21 282-283 U.S. 75 (1931), pp. 603. is pressing hard to resolve the issues but has not succeeded. Also see 22 B. R. Chauhan, Settlement of International and Inter-State Water staff, “Cauvery Dispute: Parched Karnataka Burns Fast” in Disputes in India, Bombay: N. M Tripathi Ltd., 1992, p. 232. www.timesofindia.com Sunday Post, October 5 2002. 23 C. B. Bourne, "The Rights to Utilise the Waters of International 28 Supra note 22, p. 221; also see Report of the Krishna Water Dispute Rivers” (1965) in III CYBIL, pp. 190-191; also see supra note 1, p. 19. Tribunal, Vol. 1, 1973. 26 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 27 government to resolve the conflict. The facts of the case were The issue of diversion was dealt with in the Narmada River that even after the promulgation of a new constitution of India Water Dispute, 197831 in which four states, Madhya Pradesh, in 1950, the Krishna River Basin was divided among several Rajasthan, Maharastrra and Gujarat were contestant parties. states, due to the high demand of water amongst the contestants The Narmada Water Tribunal was constituted and the dispute (Maharastra, Karnataka, Andhra Pradesh, Madhya Pradesh and referred to it. In its decision, the tribunal quoted the findings of Orissa). As disputes emerged, eventually, the Krishna dispute the Indus Commission (the Rau Commission dealt with below) tribunal was constituted and the disputes were referred to it. It and Articles IV and V of the Helsinki Rules 1966, and held the must be acknowledged here that within Article 262 of the view that equitable apportionment is the appropriate rule in Indian Constitution and Inter-State Water Dispute Act, 1956,29 adjudicating a dispute like this. It also observed that: the authority for resolving water disputes between states lies in “the diversion of water of an inter-state river, the central government and the judiciary is excluded from this outside the river basin is legal and the need for jurisdiction: diversion of water to another watershed may, therefore, be a relevant factor on the question of "Under Clause X of the final order of the tribunal equitable apportionment in the circumstances of a permitted the state of Maharastra to divert the water particular case. … the question of diversion of of Krishna River for use outside the Krishna River water of an inter-state river to areas outside the basin but imposed a limit beyond which Maharasta basin is not a question of law but is a question of could not divert the said water within one water fact to be determined in the circumstances of each year”….The tribunal maintaining that a river is an particular case”.32 indivisible physical unit further stressed that “the conflict of interests of the riparian states must be The ruling explicitly relied on the principles of equitable resolved by agreement, judicial decree, legislation or apportionment and directed the parties to establish an entity in administrative control, so as to secure a fair and just order to implement the project and consent to intra-basin distribution of the water resources among the transfer of waters. concerned states."30 In the Godawari River Water Dispute, 1980,33 the disputant In brief, this decision calls for a co-ordinated, participatory and states were Maharastra, Andhra Pradesh (AP), Karnataka, equal entitlement in the use of a common river to all riparian Madhya Pradesh and Orissa and the conflict was over sharing states. of water. With regard to the question of whether it was lawful for the state of AP to execute a project that was likely to submerge the territories of the other states, the tribunal held the 29 Ibid. p. 169: Dispute relating to Waters: “(1) Parliament may by law view that 'it is to be observed that each case of possible provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley. (2) Notwithstanding anything in this Constitution, 31 Ibid. pp.244-250; also see Report of the Narmada Water Dispute Parliament may by law provide that neither the Supreme Court nor any Tribunal, Vol. 1, 1978, p. 25 other court shall exercise jurisdiction in respect of any such dispute or 32 Ibid. complaint as is referred to in clause (1).” 33 Ibid. p. 265; also see Report of the Godawari Water Dispute Tribunal, 30 Ibid. pp . 229-231. Vol. 1, 1979. 28 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 29 submergence must be dealt with separately after consideration of equity and fairness in the allocation and sharing of shared of a concrete project involving submergence and all relevant watercourses was recognised. facts bearing on the question of such submergence. But it cannot be said generally that any project of the state of AP An example of trade for water can be found in the involving submergence of the territory of other states is Tungabhadra river waters sharing case38 between Madras and permissible without the prior consent of the affected states.'34 Mysore (Karnataka), 1944. An agreement was concluded, However, the complex issues of adverse effect on other states whereby it was agreed with Mysore that royalties shall be paid were resolved through the judgement, based on reasonable and to Madras in lieu of the utilisation of its share of the waters of equitable use of inter-state waters. The tribunal held that while Kavery at Sivasamudram. This agreement shows how states can using one’s share, there should not be any harmful or adverse trade off benefits from a shared resource. In this case, the effect on other riparian states. former paid reparation to the latter in lieu of its share of water.

The Punjab- Rajasthan- Haryana Water Dispute (Eradi The Musakhand Dam Project provides a good example of Tribunal on sharing of Ravi-Beas Waters) 1986, 35 is an Indian sharing of costs and benefits in a common interstate river case which emerged after the conclusion of the Indus river project, by the two riparian states of Uttar Pradesh and Bihar.39 treaty between India and Pakistan.36 After the bifurcation of In this case, both states shared the cost in proportion to the Punjab into Punjab and Haryana, the dispute was settled by benefits, for which a detailed calculation of the division of trilateral negotiations that led to the conclusion of an agreement water and construction of canals and dams was devised. Apart between the chief ministers of the respective states and the from this, there was the Bajaj Sagar Dam project, in which the central government’s representatives. After the change of Gujarat and Rajasthan Governments made another cost sharing political situation in Punjab, in which the Punjab legislative agreement in proportion to the benefits accruing from the assembly repudiated this agreement, the Indian Prime Minister project in 1966. This also provides for the rehabilitation of intervened and agreed to a fair allocation of waters to Punjab by constituting a tribunal to adjudicate the case. The principles to 38 Ibid. p. 309. be taken into account by the tribunal’s decision were: 39 Ibid. p. 313. The Karmnasa river rises in Bihar and flows through UP. “avoidance of unnecessary waste in the utilisation of waters, The central government asked the UP government to obtain consent rejection of territorial sovereignty, and upholding the notion of from Bihar for execution of the project for the construction of an equity and fairness.”37 In essence, the Punjab assertion based on earthen bund near the Musakhand village in Varanashi district of UP. When the governments failed to reach an agreement, the central ‘territorial sovereignty’ was rejected on the line that it is not an government produced an agreement in 1965 in which: accepted principle in international law. Haryana’s share of 1. The total capacity of the dam would be 525 million cubic ft. out water allocated by earlier treaties was upheld and the principle of which the shares of Bihar and UP would be 225 million cubic ft and 3,00 million cubic ft respectively. 2. The cost of the construction and future maintenance of the dam was to be shared by the two parties equally. 34 Ibid. 3. The cost of the envisaged canals, to be built up by the two states, 35 Ibid, pp. 283-292; also see Report of the Ravi and Beas Waters was to be borne by the respective state in whose territory the Tribunal, 1987. concerned canal was to be constructed. Bihar was also to bear the 36 II (1)YBILC, Indus Rivers Waters Treaty 1960 (1974), pp. 99-102. cost of construction of the canal from the UP border carrying 37 Supra note 22, pp. 283-292. water into Bihar. 30 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 31 displaced persons from the areas submerged and settlement of judgements, the principles of equitable apportionment, efficient the amount of compensation to be paid to Rajasthan by Gujarat utilization and co-operation between the watercourse states in lieu of those submerged areas affected by the construction of were enunciated. This has significantly contributed to the fair Kadana Dam.40 In both cases, water projects were developed in and equitable entitlement of a state’s entitlement to a shared such a way that each state shared the costs and benefits fairly, water resource within India. equitably and reasonably. Such an example provides the ground for the effective and efficient development of a shared resource Many of the principles decided in the case law discussed above for mutual benefit. were foreshadowed by a commission established by the British government in 1941. As an early commission, which was These inter-state resolutions within India could be regarded as constituted to resolve the inter-state dispute between the good examples of how to resolve the existing problems on province of Sind and Punjab in the then British India under the sharing and allocation of common waters between India and her Government of India Act 1935, some of the recommendations other riparian states at the international level. The fact that made by the commission were highly significant to the India has already agreed to such arrangements should not be development of the area. However, it must be taken into refused with respect to her neighbours. The genesis of these consideration that these recommendations were never complied resolutions has been a co-operative approach, negotiation, with by the disputant parties. The commission chaired by exchange of data and statistics and a true realisation of how to Justice B. N. Rau, known as the Rau commission, enunciated share the costs as well as benefits proportionately with a ‘no six principles for the resolution of the dispute, two of which are harm’ concept. The reason for evaluating several Indian water pertinent here. One of the principles is: disputes is that the research is explicitly linked with the issues of India’s neighbour, Nepal, i.e., the Indian case law could be "the rights of the several provinces and states must helpful to sort out the outstanding issues in the region. Similar be determined by applying the rules of 'equitable inter-province problems remain in Pakistan as well, in relation apportionment', each unit getting a fair share of the to the sharing of the Indus River water between Punjab and water of the common river." The second one is that Sindh provinces. There are serious conflicts here, the former “that equitable sharing once made, may cease to be alleging the latter wastes its share and the latter blaming the equitable later, in the face of the new former for stealing its share of water. This has resulted in circumstances.” 43 political issues being led by water issues. Consequently, there is now an independence movement in Sind Province, assumed This indicates that the changed circumstance, in which new to stem from the water sharing issues.41 These decisions have perspectives emerge, may change a judgement made earlier, as inextricable linkages with the book in view of the fact that India a result of which the equitable matters may become inequitable is alleged to be using double standards while dealing with its in the changed circumstance. That is to say that the term upstream and downstream states.42 In conclusion, in all 'equitable utilisation' varies in each circumstance and context, and may not be static and stable. 40 Ibid. pp. 314-315. 41 M. Paukert, “The Indus umbilical” Himal South Asia, July (2002). 42 A. B. Thapa, “World Bank and Nepal’s Water Strategy” (2003) 10-16 43 Supra note 22, p. 154; also see “The Report of the Indus Commission” Jan., in 23 Spotlight, pp. 1-3. Lahore, Gov. Printing Punjab, 1950. 32 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 33 In practice, neither party ever recognised these principles. only in so far as the joint use of the water is not thereby made Subsequently, the case was forwarded to the Secretary of State impossible but is left for the rest of the cantons in the same in London. After independence and the subsequent partition of manner. In other words, highlighting the significance of the India and Pakistan on August 15, 1947, the issue again emerged judgement, Smith stated that: as an international dispute, that was later resolved through the “so long as the sovereign power of the state is conclusion of the Indus Treaty, 1960 by the mediation of the exercised in a reasonable and beneficial manner, World Bank, which is evaluated below. 44 its exercise cannot be vetoed by the assertion of any absolute property right .. the decision 2.3.2 Developments in European States 'essentially rests upon the principle of the "equitable apportionment of benefits’".46 The principles of equitable utilisation have been enunciated in several European states in water disputes between the members In fact, it is the first decision in Europe in which the rule of of federal states on how to share the waters between them. The equity was invoked to protect the interests of the disputant Supreme Court of Switzerland decided a case relating to water parties equally and equitably. allocation and sharing between cantons in 1878. This predates the US Supreme Court decisions on similar water disputes in The diversion of the waters of the Leith River 1913, 47 involved the United States. The Aargau v. Zurich case45 related to the an Austrian diversion inside Austria, depriving Hungary of its Zwillikon Dam and is significant in terms of its weight and share, which it was already utilising. The Royal Imperial significance in IWL, as well as constituting a well-balanced Administrative Court of Austria held the view that the decision addressing the interests of all cantons in the sharing of diversion was against the rules of customary international law water (in an interstate water dispute). A private firm in the and eventually prohibited this unilateral diversion. The court village of Zwillikon, in the canton of Zurich, constructed a dam found that states are under an obligation to respect an existing on the Jonabach River to provide power for its factory. right in a watercourse beyond their frontiers. In the present However, this company required deposits of a certain sum of case, for the people of downstream Hungary relying on the money in a bank to be used to indemnify persons whose water, depriving them of their share was in itself an illegitimate existing uses downstream might be effected by the new works. act. In essence, the court upheld the rules of reasonable and As a result of diversion, the mill owners further downstream in equitable utilisation for water sharing by riparian states. the canton of Aargau complained that the dam deprived them of sufficient flow of water to operate their facilities. The Swiss The Italian Court of Cassation, in the case of Societe Energie Supreme Court in its judgement held the view that where the Electriquedu Littoral Mediterancen v. Compagnia Imprese interests of two cantons are in conflict, as in the present case, Elettriche Liguri 1939, 48 affirmed the principle of a community international law principles derived from the ‘law of good neighbourliness’ apply, in which each canton is entitled to the 46 Ibid. rational utilisation of the waters, corresponding to its needs, but 47 Supra note 23; also see the text of the decision in 7 AJIL, (1913) pp 653-660; also see Hackworth, Digest of Public International Law 44 Ibid. pp. 183-184 Cases, (1940) pp. 594-95. 45 H. A. Smith, The Economic Uses of International Rivers, London: P. 48 Ibid. pp. 253-254; also see the text in Digest of Public International K. King & Son Ltd, 1931, pp 39-43. Law Cases, (1938-1940) p. 120. 34 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 35 of ownership of water with respect to shared resources. The maintaining certain works (Baden and Prussia), and to instruct main thrust of the case concerned the implementation of a Baden to remove the natural obstacles, which accumulate in the French court decision in Italy, but at the same time, some rules bed, and on the banks of the river in order to ensure an of international water sharing were discussed: unimpeded flow of water. “the international duty of the state not to impede or to destroy the opportunity of the other states to The German Supreme Court held that Baden must refrain from avail themselves of the flow of water for their own causing an increase in the natural sinking of the waters of the national needs”.49 Danube due to its artificial works and by the accumulation of sand and gravel in the bed of the river. And Wurrttemberg was Nonetheless, the basic rule of an IWC, as advocated in the required to refrain from decreasing the natural sinking of judgement, is equality of right that must be utilised equally, Danube waters due to certain works and artificial damming of fairly and equitably as not to inflict injury beyond the frontiers avenues of sinking. The court also held that while sovereign of that state. states (or members of a federal state) are using waters of their territory, they must bear in mind that it should not cause any A dispute relating to water sharing and allocation emerged harm or injury to other states and the interest of each state must between German provinces in Wurttemberg & Prussia v. the be weighed in an equitable manner against the interest of Baden, in which the Supreme Court Staatsgerichtshof rendered others. The case dealt with a unique natural phenomenon. It its judgement in 1927.50 The facts of the case itself are also held the view that the disputant provinces must respect the interesting, due to the unique natural phenomenon of the water equitable and reasonable share of every province. McCaffrey of the Danube sinking into the aquifers, the seepage water has highlighted the significance of the case by saying: reappearing in a separate drainage basin, (that of the Rhine "even for a case between two states of a River located in the state of Baden). In the Wurttemberg section federation, the Staatsgerichtshof’s analysis, and of the Danube, all the water disappeared as a result of the the principles it applied, are remarkably advanced natural sinking phenomenon, which made the case further from the period in which judgement was rendered. complicated, dragging Wurttemberg into the controversy. … the rules it applied are generally consonant Baden, on its part, requested an injunction restraining with those contained in the 1997 UN Convention, Wurttemberg from constructing and maintaining certain works especially those of equitable utilisation and the that were allegedly intended to prevent the natural flow of the obligation to prevent significant harm."52 Danube waters to the Aach. At the same time, Prussia, downstream of Wurtttemberg, was also injured by the loss of In fact, the German case is the earliest groundwater case which water from the Danube and intervened in the suit on the side of explicitly enunciated the principles of equitable utilisation, no Wurttemberg.51 In this context, Wurttemberg asked the court to harm rule and due diligence by applying the rules of grant an injunction restraining from constructing and international law as if it were a case between the two sovereign 53 nations. The significance of procedural issues such as 49 Ibid. pp. 253-254 & 120. 50 Ibid. pp. 217-221. 52 Supra note 2 p. 220. 51 Ibid. Also see the text in Annual Digest of Public International Law 53 J. G. Lammers, The Pollution of International Watercourses, The Cases, (1927) p. 128. Hague: Martinus Nijhoff Pub., 1984, p. 433. 36 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 37 notification and cooperation are highly important and if these court has no binding force except between the issues had been applied in this case, the dispute would probably parties and in respect of their particular case.”55 not have arisen. In other words, without invoking these procedural issues the application of equitable utilisation in a However, regardless of that fact, such decisions have greatly shared watercourse is not viable. These norms were not influenced the resolution of international disputes and reference practised by the disputant parties in this case. Procedural issues to several such cases has become normal practice. In this are further addressed in Chapter Three. section, evaluation of a few decisions that have contributed to the development of this area will be made even though they do The above noted European cases were settled through the not all directly address IWL. cardinal rule of reasonable and equitable apportionment. In other words, the decisions advocated the notions of good From the start it is worth noting that arbitral awards may be neighbourliness between riparian states, resolution of the issues tantamount to judicial decisions in international law. For by means of negotiation, agreement, co-operation, and example the Trial Smelter Arbitration decision is regarded as a notification. In each circumstance, equity played a central role main source of environmental law.56 Such adjudications have to bridge the gap between the conflicting interests of the explicitly influenced the entire process of development and contestant parties. In this sense, it can be concluded that equity codification of the area. They have been followed, quoted and and equitable utilisation remain at the centre of the resolution recognised in the practice of states, by judicial bodies and also of each conflict in the above state practices. Moreover, in most by scholars. The earliest decisions have planted the seeds of the cases, irrespective of the fact that the disputes were domestic in development of sharing and allocation of IWC. nature, international law was applied to ensure that the interests of each state, province or canton were considered and justice 2.4.1 Helmand River Delta Cases was done. The Helmand River originates in the mountains 35 miles west 2.4 International Judicial and Arbitral Decisions of Kabul and flows across 700 miles of the territory of Afghanistan.57 A water dispute arose between Afghanistan and As already noted, municipal judicial decisions have greatly Iran in relation to delimitation of their boundary and the use of inspired and influenced the development of IWL.54 The the waters of the Helmand River in the Seistan delta region. In decisions of international courts and tribunals must also be 1872, the dispute was submitted to the arbitration of a British discussed. Article 38(1)(d) of the Statute of the ICJ stipulates Commissioner, General Fredrick Goldsmid. In the award, he that the court shall apply decided, “subject to the provisions of Article 59, judicial decisions ..., as subsidiary means for the

determination of rules of law ... the decision of the 55 Ibid. p. 1075-76. 56 C. B. Bourne, "The International Law Commission's Draft Articles on the Law of International Watercourses: Principles and Planned Measures" (1992) in 3 CJIL&P, pp. 65-92. 54 D. J. Harris, Cases and Materials on International Law, London: 57 D. A. Caponera (ed), The Law of International Water Resources, Sweet and Maxwell, 1998, p. 1075. Rome: FAO Legislative Study no 23, 1980, pp. 233-34. 38 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 39 "Persia should not possess land on the right bank of within their own territories, to maintain existing the Helmand. It appears therefore beyond doubt canals, to open out old or disused canals, and to indispensable that both banks of the Helmand above make new canals, from the Helmand River, the Kohak band be given up to Afghanistan. The provided that the supply of water requisite for main bed of the Helmand therefore below Kohak irrigation on both sides is not diminished. should be the eastern boundary of Persian Seistan. It Clause VII: It will be noted that the rights to the is moreover to be well understood that no works are Helmand River, which its geographical position to be carried out on either side calculated to interfere naturally gives to Afghanistan as owner of the with the requisite supply of water for irrigation on the upper-Helmand, have been restricted to the extent banks of Helmand”.58 stated in favour of Persia in accordance with Sir Frederick Goldsmid's award. It follows, therefore, This is an early decision that has contributed to the fair that Persia has not the right to alienate to any allocation of waters from the shared river to each riparian state. other power the water rights thus acquired It has, therefore, clearly underlined the following concept: without the consent of Afghanistan."60 whilst using your share of waters you must take into account the interest of other riparian states, and in doing so, any The earlier judgement, namely the Goldsmid verdict of 1872, detrimental affect with or without malicious intention is was supported by a later one. The award rejected the notion of forbidden. Thus this decision has been regarded as one of the interference in the other party's utilisation of water and foundations of equitable utilisation. supported each share of water for its own beneficial use without distorting the other. In the later case of 1905, Col. MacMohan In 1902, a second dispute was submitted to Colonel found that Persia was causing detrimental effects on MacMohan, asking what amount of water fairly represented a Afghanistan’s share of the waters and declared Persia’s action requisite supply for irrigation provided on behalf of Persia by illegal. However, Persia (Iran) has never accepted the the award of 1872. The mission in Seistan had been created in judgement. order to determine the requisite supply for Persian needs and it was stated that one third of the water which reached Seistan 2.4.2 Trail Smelter Case, US-Canada would suffice for irrigation in Persian Seistan, leaving the same supply for the Afghan requirement as well.59 At Trail, located in British Columbia, Canada, seven miles away from the American border, there was a large stock of lead The award contained eight clauses. Two clauses, viz., clauses I smelters and mines being excavated by a company. During the and VII, are particularly relevant: smelting process, the sulphur dioxide fumes were carried over "Clause I- No irrigation works are to be carried the border and caused damage to crops and vegetation on US out on either side calculated to interfere with the territory. The citizens of Washington State, due to lack of a requisite supply of water for irrigation on both legal remedy within their territory because of the fact that the banks of the river, but both sides have the right, air pollution was caused by an act in Canadian territory, asked

58 Ibid. p. 233. 59 Ibid. p. 234. 60 Ibid. 40 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 41 the US Government to initiate proceedings against such affecting others.'65 It should be understood that this judgement harmful activity and to seek compensation for whatever has an explicit link with the 'no harm rule', stipulated in Article damage had already occurred. The United States and Canadian 7 of the 1997 UNCIW, Article 21 of the UN Conference on the Governments signed a convention in Ottawa in 1935 and Human Environment, 197266 and Article 2 of the UN constituted an arbitral tribunal accordingly.61 The tribunal Conference on Environment and Development, 1992.67 These rendered its decision in 1938 and 1941: are the basic foundations for no harm rules. For the purpose of this book, use of waters in an IWC is the right of riparian states "Under the principles of international law, … no with the obligation of prohibition of any harm to other state has the right to use or permit the use of its watercourse states. In the event of any harm to the other territory in such a manner as to cause injury by riparian, such harm must be mitigated, averted or eliminated. fumes in or to the territory or another or the Furthermore, this is the foundation stone for the concept of properties or persons therein, when the case is of extraterritorial water pollution, no harm rule and environmental serious consequence and the injury is established law. by clear and convincing evidence."62 2.4.3 Lake Lanoux Case, 1957 France - Spain Canada was held responsible in international law for the conduct of the Trail smelter. Therefore, the Trail smelter was This case is more significant than the earlier cases in relation to required to refrain from causing any harm through fumes the development of IWL, due to the fact it is explicitly related passing over the state of Washington. While this case has no to the allocation and sharing of fresh waters in an IWC.68 The direct relation to the subject of this research, the decision, has case was decided by an arbitral tribunal constituted by the far reaching implications in the development of international parties according to their Arbitration Treaty of 1929. Both law as a whole and especially modern international states signed a Compromise in 1956.69 environmental law.63 This principle is largely complied with, followed and appreciated by the international community. As a The outlet of Lake Lanoux in the eastern Pyrenees of France result of such recognition the Trial Smelter principles have flows into the Carol River. In order to generate hydropower, become a significant part of customary rules of international France proposed to divert the Lake Lanoux waters over a law.64 This decision is cited in many national and international mountain drop into the Friege River in France and later the cases, state practices and writings. The maxim sic utre tuo, same quantum of water was to drain into the Carol River. Spain propounded for the first time in this case, has been followed in objected to the diversion of the waters, contending that it would many cases including the Lake Lanoux and Corfu Channel, quoting the concept of 'use your own resources without 65 C. B. Bourne, "The Development of International Water Resources: The Drainage Basin Approach" (1969) in 47 CBR, pp. 72-76. 66 P. W. Birnie & A. E. Boyle, Basic Documents on International Law and the Environment, New York: Oxford University, 1996, pp.1-8. 67 Ibid. pp. 9-14 61 Supra note 36, pp. 192-194; also see 35 AJIL (1941) pp. 684-716. 68 R. Bernhard (ed), Encyclopaedia of Public International Law: 62 Supra note 57, p. 244. Decision of International Courts and Tribunal and International 63 Supra note 56. Arbitration, the Hague: North-Holland Company, 1981, pp. 166-167. 64 35 AJIL (1941) pp. 684-716. 69 24 ILR (1961), p. 101; also see 53 AJIL (1959), p. 156. 42 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 43 have an adverse effect in its territory. The arbitral tribunal held to the customary international law.”72 The ruling said no; there that the proposed diversion would not violate the treaty because is no provision in customary international law that an upstream there would be no net alteration to the flow of the Carol River. country is compelled to have consent from her downstream neighbour before initiating a water project. It can be argued that "…the tribunal expressed its view that under had not this point been made clear by the tribunal, there would existing customary international law co-riparian be the danger of the downstream state having a veto over the states are equally entitled to reasonable use of the matter. In the event of such a ruling, equitable entitlement of waters from an international drainage basin and the upstream state could be jeopardised. its view regarding a co-riparian consent; …that there exists a principle prohibiting the Thus, from the analysis of the judgement, a number of upstream state from changing the waters of a river substantive principles have emerged. It appears that a in their natural condition to the serious injury of a downstream state has no veto power to stop or object to any downstream state. Such principle cannot be project in the upstream state unless it inflicts substantial or applied to the present case because the tribunal serious or significant adverse effects. Therefore, it is a duty of has established, in regard to the first question the state that is proposing to develop a project to consult and examined above, that the French project does not negotiate with its co-riparian state in order to identify whether alter the waters of Carol."70 any adverse affect may be inflicted by such work and to ensure the equitable utilisation of such shared watercourses. It is, Therefore, Spain was only entitled to the adoption by France of therefore, a milestone judgement that has far-reaching measures ensuring the reasonable protection of Spain’s interest. implications in IWL. When one examines the question of whether France, either in course of dealing or in her proposals has taken the Spanish 2.4.4 Gut Dam Case 1968, Canada v. USA interest into sufficient consideration, it must be stressed how closely linked together are the obligations to take into The St. Lawrence River is one of the principal rivers in North consideration the violation of interests in the course of America and the main outlet for the Great Lakes. Lake Ontario negotiation, and the obligation to give reasonable place to those is situated between Canada and the United States. It receives interests in the adopted solution. A state that has conducted the drainage of the entire Great Lakes system through the negotiations in good faith in accordance with Article II of the Niagara River and discharges into the St. Lawrence River. With Additional Act is not excused from giving a reasonable place to the consent of the US, Canada constructed a dam between adverse interest in the solution it adopts, even if negotiations Adams Island in Canadian territory and Les Gallops Island of had been interrupted owing to the intransigence of its partner.71 US territory in St. Lawrence River in order to improve navigation. However, a condition of this consent was not to The significant aspect of the judgement is the clear and cause any adverse effect in US territory or to its citizens. In unequivocal answer to Spain’s assertion as to “whether France case of such impact, Canada had agreed to pay compensation must have her consent before initiation of the project according 72 24 ILR (1961), pp. 101-105. This “consent in case of harm” principle 70 Supra note 68, p. 167. was not recognised in the 1929 Treaty between Norway and Sweden 71 Ibid. which has been evaluated later below. 44 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 45 for such damages. The dam was constructed in 1904 and in to the sea, with or without transhipment from one 1951/52 the water in the same river reached an unprecedented vessel to another; together with lateral canals and level and caused extensive flooding and erosion damage to US channels constructed either to duplicate or to soil. In order to resolve the issue, US-Canada constituted the improve naturally navigable sections of the Lake Ontario Claim Tribunal in 1965. The Tribunal in its specified river systems, or to connect two decision declared that Canada had caused harm and must pay naturally navigable sections of the same river".74 reparations.73 However, to settle the amount of compensation, there was a separate agreement negotiated by the US and A dispute arose between Poland, which contended that the Canada in 1968 in which Canada paid a total US$ 350,000 as jurisdiction of the Commission, which consisted of the full and final compensation for the damage caused by the representatives of Germany, Denmark, France, Great Britain, construction and operation of Gut Dam. This case enhanced the Sweden, Czechoslovakia and Poland, was limited only up to idea of “use your own resources without causing any adverse the sections of the Warthe and the Netze in Polish territory. effect to the other riparian.” Others contended that it must be to the navigable point of Warteha and the Netze, even leaving the territory of Poland. In To sum up, all these arbitral tribunals’ decisions upheld and other words, Poland insisted that the jurisdiction of the advocated the idea of equitable apportionment of the waters of Commission was limited to the Wartha and the Netze rivers in an IWC. That is to say, the shared resources of an IWC are Polish territory but the appellant maintained that the common property of all riparian states, in which all riparian jurisdiction followed these rivers until the point of a navigable states are deemed to have equal entitlement over it. Eventually, area. all interests should be protected equally while utilising the resources. The issue of 'no harm' is also a significant aspect, The first water dispute was submitted to the court and the court which advocates that the right of a state to exploit on an IWC is judgement addressed questions which are significant to the always matched by the duty of no harm to the other riparian. development of IWL, in both navigable and non - navigable aspects. The court found that the difference between an 2.5. PCIJ and ICJ Decisions international and a national river is that the first must be navigable and naturally provide more than one state with access 2.5.1 The Case Relating to the Territorial Jurisdiction to the sea: of the International Commission of the River "but when consideration is given to the manner in Oder, 1929 which states have regarded the concrete situation arising out of the fact that a single waterway

traverses or separates the territory of more than one The Treaty of Versailles 1919 declares the river Oder to be an State, and the possibility of fulfilling the international river and provides: requirements of justice and the considerations of "all navigable parts of these river systems which utility which this fact places in relief, it is at once naturally provide more than one State with access seen that a solution of the problem has been sought

73 P. Sands, Principles of International Environmental Law, New York: 74 Germany, Denmark, France, Great Britain, Sweden, Czechoslovakia v. Manchester University, 1995, pp. 360-361; see 8 ILM (1969), p. 118. Poland, Annual Reports of the PCIJ (1937), pp. 221-222. 46 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 47 not in the idea of a right of passage in favour of today, as it was quoted by ICJ in the 1997 judgement of the upstream States, but in that of a community of Gavcikovo-Nagymaros case, (which is addressed below).76 interest of riparian States. This community of interest in a navigable river becomes the basis of a 2.5.2 The Diversion of Water from the Meuse 1937, common legal right, the essential features of which Belgium v. the Netherlands are the perfect equality of all riparian States in the use of the whole course of the river and the The River Meuse originates in northern France and flows exclusion of any preferential privilege of any through Belgium and the Netherlands into the North Sea, where riparian State in relation to others. The jurisdiction it forms a common delta with the Rhine. The Netherlands and of the Commission extends up to the points at Belgium concluded a treaty in 1863 relating to the regime which the Warthe (Wartha) and the Netze (Notec) diverting water from the Meuse for the feeding of navigation cease to be either naturally navigable or navigable canals and irrigation channels. In 1925, the two states by means of lateral channels or canals which concluded a new treaty in order to settle all differences duplicate or improve naturally navigable sections concerning the enlargement and construction of new canals. or connect two naturally navigable sections to the 75 The Netherlands and Belgium started works on the diversion of same river”. water from the Meuse.77

The implications of this judgement are far reaching for shared Both states objected to the work carried out by the other, i.e., watercourses, e.g., a watercourse that flows from the territory the diversion works for irrigation and navigation channels. As a of a state or states is common property to all riparian states and result, the Netherlands submitted a case to the court requesting should be treated in such a way that each use does not impair it to declare such works illegal and against the provisions of the others entitlement. The idea of ‘community of interest’ has 1863 treaty. been regarded as an origin of the equitable utilisation principles - main pillars of the rules of IWC. In other words, this principle The court rejected both claims, confining itself exclusively to has a dominating role in the development of IWL and practice an interpretation of the said treaty. However, it strictly of states largely depends on it. Thus, the submission of Poland maintained the basic principle of equal treatment of states as was refused and the other contestant states’ contentions were well as the reciprocity of the rights and duties of the parties in a upheld in the judgement. For example a state cannot regard a shared watercourse.78 river that flows within its territory as entirely its own resource. Rather, it equally belongs to the other riparian as well and in 76 37 ILM (1998), p. 162-202; Caflisch has regarded this case as a such shared resources 'community of interest' prevails. This ‘grandmother of all cases’ relating to the dispute on shared judgment along with Diversion of the Waters of the Meuse and watercourse, also see; C. Caflisch, “Judicial Means for Settling Water North Sea Continental Shelf cases has remained important even Disputes” in PCA (ed), Resolution of International Water Disputes, the Hague: Kluwer Law, 2003, p. 239. 77 Supra note 57, p. 229-230; see supra note 35, p. 187-88; also see Thirteenth Annual Reports of the Permanent Court of International Court of Justice, Series E. No 13, (1937) pp. 135-141. 78 Supra note 36, PCIJ Decision on Meuse Diversion Case, (1937), pp. 75 Ibid. 187-88. 48 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 49 2.5.3 Gabcikovo-Nagymaros Case, Hungary v. Slovakia arguments, the Court reached the conclusion that Hungary was not entitled to cancel the project.81 The Court dismissed the Hungary and Czechoslovakia concluded a treaty in 1977 above-mentioned Hungarian submission and held the view that concerning the construction and operation of a project designed to suspend and subsequently abandon the project was not to develop, share and allocate benefits from the Danube River. legally justifiable. Instead of doing so, Hungary would have to This project was to be carried out by joint investment and on take the opportunity to have recourse to the dispute settlement the basis of a mutual management plan. The system was mechanism contained in the treaty. The court further held the designed to attain the broad utilisation of the natural resources view that: of the Bratislava-Budapest section of the Danube River for the "the 1977 treaty was not only a joint investment development of water resources, energy, transport, agriculture project for the production of energy, but it was also and other sectors of the national economy of the contracting designed to serve other objectives as well: the parties.79 The plan was aimed at the production of improvement of navigability of Danube, flood control hydroelectricity, the improvement of navigation on the relevant and regulation of ice-discharge, and protection of the section of the Danube and the protection of areas along the natural environment. None of these objectives has banks against flooding. While the treaty arrangement was being been given absolute priority over the other, in spite of considered for implementation, the environmental effect of the the emphasis, which is given in the treaty to the project was heavily criticised. The Hungarian Government, as a construction of a system of locks for the protection of result of severe pressure from its civil society, was compelled energy. None of them has lost its importance. In order to postpone the project at first, and later (1991) terminated the to achieve these objectives the parties accepted treaty unilaterally because negotiations with Czechoslovakia obligations of conduct, obligations of performance did not yield any positive result. In the mean time, Slovakia (a and obligations of result".82 “The treaty could not be successor state from Czechoslovakia) decided to begin the repudiated unilaterally: Article 26 of the Vienna construction and then to put the project into operation by a Convention of 1969 on the Law of Treaties, combines provisional solution. Both nations failed to resolve the disputes. two elements, which are of equal importance. It Subsequently, as a result of the European Union’s effort, they provides that every treaty in force is binding upon the agreed to submit the case to the ICJ for adjudication.80 parties to it and must be performed by them in good faith. The principle of good faith obliges the parties to The Court dealt with several issues, i.e., suspension and apply it in a reasonable way and in such a manner that abandonment of the project by Hungary, issues of its purpose can be realized."83 environmental consideration, state of necessity, the impossibility of performance of the Treaty, the occurrence of a Thus, the judgement obviously indicated that the way of fundamental change of circumstances, the material breach of confrontation instead of co-operation does not help to share and the treaty and development of new norms of international develop a project in a shared resource. Regarding the unilateral environmental law. Refusing all the above-mentioned use of the Danube by Slovakia, the Court held the view:

79 Preamble of the Treaty Concerning the Gabcikovo-Nagymaros Project 81 Ibid. Para 59, p. 187 and pp. 191-197. 1977 at 1109 UNTS, p. 211. 82 Ibid. Para 135, p. 200. 80 Para 15-25 of the ICJ's judgement 37 ILM (1998), pp. 162-202. 83 Ibid. Para 142, p. 201. 50 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 51 “it is not only a shared international watercourse but To conclude this section, states have rights in an IWC. At the also an international boundary river, from which same time they are obligated to use their right with restraint, presently Hungary is deprived of its benefits and that is to say, to cause harm or injury is not permitted. The Slovakia is using between 80 and 90 percent of the states in an IWC are required to consult, negotiate and co- waters of the Danube before returning them to the operate with each other and work in a co-ordinated manner by main bed of the river, despite the fact the Danube is addressing each other’s interest and maximising the benefits. not only a shared international watercourse but also Furthermore, the Gavcikovo-Nagymaraos judgement provides an international boundary river.”84 insight into the significance of such co-operation. There have been varying state practices in this area. In the Nile basin, for The way, in which Hungary is deprived from these benefits by example, both treaties of 1929 and 1959 safeguarded the prior Slovakia putting the ‘Variant C’ (a provisional solution adopted or historical or vested right of Egypt over the Nile’s water, by Slovakia) into operation, is incompatible with the treaty which in essence advocated the ‘no harm rule’, against the provisions. As a result, both states’ actions are illegal, and both concept of equitable utilisation. In other treaty regimes, like the states are obligated to pay compensation to the other for the treaty between Canada and USA, Mexico and USA, and several injury incurred by each action to the other and both of them are others have maintained the cardinal rule of IWC as ‘equitable required to negotiate and execute the provisions of the 1977 utilisation’. However, from the evaluation of each practice treaty in a good faith, reasonable and equitable manner.85 envisaged in those treaties, the majority of such regimes have emphasised the concept of reasonable and equitable utilisation, In summary, the judgement provided that the reasonable and no harm to the other state and duty to cooperate and negotiate. equitable utilisation of an IWC is the basic requirement. The notion of equity, which bridges the gap between the divergent 2.6 Scholarly Contributions interests, is the major rule of shared water resources and the dispute in question should be dealt with accordingly. Treaty According to article 38 (1) (d) of the statute of the Statute of arrangements should be implemented in good faith with the ICJ, objectives set forth in it. In doing so, there are several rights “subject to the provisions of article 59, judicial corresponding to a duty to inform and negotiate about the decisions and the teachings of the most highly proposed project, follow to the concept of ‘no harm’ and qualified publicists are regarded as subsidiary ‘equitable utilisation’, and always maintain good means for the determination of rules of law.”86 neighbourliness, and a cooperative attitude. Apart from this, consideration of the watercourse as a single unit and the The contributions of the ILI, ILA, Inter-American Bar genuine interest of attainment to maximize benefits from such a Association (IBA) etc, are naturally the contributions of project for the mutual benefit of all riparian states are also numerous scholars which is dealt with later. It is not possible to necessary conditions. evaluate every individual’s contribution here. However, eminent scholars such as Oppenheim, Lauterpacht, Smith, Berber, Andrassy, Goldsmid, Black, (then president of the

84 Ibid. Para 78, p 190. 85 Ibid. pp. 198- 202. 86 Supra note 54, p. 1075. 52 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 53 World Bank), Lilenthal, Schwebel and Bourne have made though it might curtail the recreational use of a downstream significant contributions in the development of this subject.87 state B, but the same amount of water extraction from an IWC Contribution was made by Black and Lilenthal to the successful could be denied in similar circumstances, if it hampered the negotiation that yielded the conclusion of the Indus treaty 1960 drinking water source of millions of people in State B, (even if between India and Pakistan, resolving a dispute which had it were beneficial to an upstream state A). The reason for threatened the peace and security not only of south Asia but having no consensus on reasonable and equitable utilisation is also the entire globe. The treaty was made possible by their its vagueness, lack of precise definition and different use in institutions and personal involvement as well.88 different situations. As a result, there has always been a profound division of views, while different state practices have Chauhan has argued, as an early jurist in the subject, the work emerged and different solutions on the issues have been of Schulthess, a Swiss Publicist, written in German, is worth provided. Nonetheless, the most respected and recognised mentioning as the first work in this regard. In the English norms have been developed with regard to reasonable and language, the earliest contribution (book) was made by Smith equitable utilisation. This fact has been confirmed by the which is The Economic Use of International Rivers 1931.89 UNCIW, the judgement of Gabcikovo-Nagymaros case by the Chauhan further contended that Berber, Gieseke, Jaeger, ICJ91 and other state practices. Caponera and himself are well-known writers and jurists on the subject. He quoted Berber as saying that “international International watercourses are regulated by IWL. For states, as agreements are the best and most suitable means of settlement members of the international community and subject to of IWL disputes.”90 international law,92 their behaviour regarding the use and sharing of IWC has determined several practices in the arena. Although learned experts have not been unanimous in their The best practices, which equally address their common views pertaining to the rules of IWC, the majority are of the interests based on equity and fairness, are largely appreciated in view that the reasonable and equitable utilisation approach is the international arena. As a result, these practices have the major rule of the area. It must be borne in mind that the received unanimous acceptance and are largely followed by application of the principles could be different in view of the others states. Basically, the undisputed, well-recognised, and socio-economic, technical, legal, geographical and political reasonable exercises of states could later take the form of circumstances. This does not mean, however, that the norms or customary international law.93 Nonetheless, it could be principles should different. For example, a upstream country A asserted that such practices should be addressed in a manner could divert a significant quantum of the waters of a river in that is not so contentious that states would be reluctant to adopt order to fulfil the food demand of millions of people living in it it.94

87 Most of them made their contribution through their writings on the subject and through the Institute of international Law, the adoption of 91 37 ILM (1998), pp. 162-202. the Helsinki rules and in the resolution of the Indus river treaty 92 Wimbledon case, PCIJ Reports, series A. No 1-7, p. 25. between India and Pakistan. 93 A. Elizabeth Roberts, "Traditional and Modern Approach to 88 A. K. Biswas, "Indus Water Treaty: the Negotiating process" (1992) in Customary International Law: A Reconciliation” (2001) in 95 AJIL, 17 WI, p. 209. pp. 757-791. 89 Supra note 22, pp. 61-63. 94 J. Patrick Kelley, “The Twilight of Customary International Law” 90 Ibid. (2000) in 40 VJIL, pp. 451-457. 54 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 55 detrimental or adverse affects to other riparian states. The A United Nation's study in 1978 has showed that there are 261 notion, in fact, has become the rule of customary international 95 international rivers. With the break up of the Soviet Union law as seen above in Gavcikovo-Nagymaros judgment and and former Yugoslavia, the number has escalated further, and Article 5 of the UNCIW. there are more than 300 treaty agreements regarding the allocation and sharing of such waters. Are there the same A similar arrangement in the treaty of 1933 between Brazil and number of practices and principles developed so far? The Uruguay provides half of the waters to each party. If any answer is obviously no; it is not possible to enunciate a new utilisation of water may cause an appreciable and permanent principle in each agreement. As far as the state practices are alteration in the rate of flow of a watercourse running along or concerned, two principles have been developed, the principles intersecting the frontier, the state desirous of such utilisation of 'equitable utilisation' and ‘no harm rule’. They are accepted shall not carry out the necessary work until it has concluded an in most of the state practices as the basic norms of any 99 agreement with the other state. It must, therefore, be borne in negotiation.96 It is, therefore, argued that the increased mind that through co-operation, negotiation and agreement any interaction and interdependency of states has forced IWL to be problems can be settled and conflicts resolved to the more responsive to the conflicting interests of co-riparian.97 satisfaction of conflicting states. If we carefully examine the

provisions of water sharing treaties, stipulations of such 2.7 State Practice conditions are common in most of the instruments.

It is appropriate to examine some of the state practices that are Such prohibition has become an indispensable part of significant to the development of this area. The Convention multilateral conventions. The General Convention Relating to between Sweden and Norway on Certain Questions Relating to the Development of Hydraulic Power Affecting More than one the Law on Watercourses, 1929 stipulates stringent conditions State, 1923, Article 4, limits the right of a co-riparian in the use on alteration of the flow of waters; it requires prior agreement of waters flowing through its territory by requiring the consent or consent of the other riparian state before any alteration of of the other co-riparian which may have caused serious injury 100 flow of the waters can be made.98 As demonstrated earlier, with prejudice to any other contracting state. However, it from the observations of case law analysed above, states are should not be inferred that these provisions are against the obliged to use an IWC in such a way that shall not cause any concept of equitable utilisation, because the concept implies that if a use inflicts injury or harm, this itself falls in the category of unreasonable and inequitable utilisation. 95 Register of International Rivers, (1978) UN, Geneva, p. 3. Eventually, the instrument corresponds to both principles of 96 Supra note 7 p. 215-230; also see S.C. McCaffrey & M. Sinjela, “The 1997 United Nations Convention on International Watercourses” equitable utilisation and the no harm rule. The Seventh (1998) in 92 AJIL, p. 99. International Conference of American States 1933 also 97 Moermond III, & J. O. Shirley Erickson, "A Survey of the pronounced the principle of limited sovereignty in consequence International Law of Rivers" (1987) in 16 DJIL&P, pp. 139-159. of which no state may, without the consent of the other riparian 98 Supra note 36, p. 56. Article 62 of the (1929) treaty between Sweden and Norway provides that without consent any diversion is not allowed. This provision, however, was not applied in the Lake Lanoux 99 Ibid. p. 125. judgement as evaluated earlier. 100 Supra note 57, p. 46. 56 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 57 state, introduce into a watercourse of an international character, waters by ignoring others’ rights to it. However, this does not for industrial or agricultural exploitation of their waters, any mean that states are prohibited to utilise their common shared alteration which may prove injurious to the other state.101 The resources. They must acknowledge a duty to refrain from conference further restricted works of industrial or agricultural causing any detrimental effects. Each co-riparian is entitled to a exploitation, which resulted in injury to the free navigation reasonable and equitable share in the beneficial uses of the thereof, irrespective of the nature of the river, whether waters. In order to examine the fundamental rules on the area successive or contiguous. This conference had endorsed the that were developing from state practice, it is imperative to concept that the state must be restrained from inflicting any evaluate some landmark treaties. harm to the other riparian when it is utilising its own portion of water in an IWC. The above section demonstrates that in bilateral as well as multilateral practice, states are entitled to use successive as well The Madrid Declaration 1911, a resolution of the Institute of as contiguous river water in such a way that the right over the International Law (ILI), an unofficial body whose declarations waters corresponds with the obligation that such use should not are not legally binding but could constitute ‘soft law’ in the cause injury or harm in any way. If harm and injury were area, affirmed the physical interdependence of riparian states in caused, such harm or injury ought to be averted, mitigated, and such a way as to exclude a regime from complete autonomy on eliminated. Alternatively, reparation could be one of the the part of any state in the exploitation of water resources.102 options in such a circumstance. In fact, these instruments laid The rules explicitly prohibit that in the boundary water, any the ground for the further development and codification of this state may, without the consent of the other, and without a area. special and valid legal title, make or allow any alteration. If it is detrimental to the bank of the other state and, in the case of 2.7.1 Boundary Water Treaty 1909 USA-Canada successive water, all alterations injurious to the water are illegal. Moreover, international resolutions adopted by several Outstanding disputes in North America over the sharing and institutions (ILI, ILA etc), even though they bear no direct legal allocation of waters and benefits therefrom were resolved sanction, provide that the states in an IWC cannot use the through the conclusion of this treaty between USA and Canada. The most fundamental provisions of the treaty are as follows:103 An agreement over the use of boundary waters was made in 101 Ibid. pp. 203-205. 102 Ibid. p. 274, Article II of the International Regulation regarding the use order to develop them for mutual benefit. Both states reserve of International Watercourses for Purposes other than navigation, their exclusive jurisdiction and control over the waters within (Declaration of Madrid 1911): “I. The point where this stream crosses their territory. An International Joint Commission (IJC) was the frontiers of two states, whether naturally, or since time established, which is responsible for facilitating mutual immemorial, may not be changed by establishment of one of the states understandings for the overall implementation of the treaty. without the consent of the other. II. All alteration injurious to the water, the emptying therein of injurious matter (from factories, etc) is Equal and equitable rights on the boundary waters are provided forbidden; III. No establishment (especially factories, etc) is forbidden; to each state. Special arrangements were made for the III No establishment (especially factories utilising hydraulic power) apportionment of the Niagara River on a different basis. may take so much may take so much water that the constitution, otherwise called the utilizable or essential character of the stream shall, when it reaches the territory downstream, be seriously modified.” 103 Supra note 36, pp. 72-74. 58 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 59 Without approval of IJC, no obstruction or the works on It must be acknowledged that during the negotiations on the boundary waters was made possible. The dispute on the St. Columbia River Treaty, Canada had attempted to invoke the Mary and Milk River flowing across the boundary was settled provision and bargained to divert the Columbia Rivers water on the basis of existing uses as agreed by the parties. into the Fraser River and to the ocean, which was flatly refused by the United States. However, this argument was regarded as Article II, which resembles the Harmon Doctrine, provides the best tool to make the USA agree with the Canadian exclusive rights over the diversion of the rivers to the parties.104 proposal on the said treaty. This example shows how states It also provides that within their territory the watercourse states change their position when it appears that certain provisions of can utilise waters as they please. However, arrangement has a treaty could be used against their interests. Such is the been made that if such a diversion caused any harm or injury, importance of bargaining power of a state in order to make the the injured party would be entitled to the same legal remedies other state agree with it. It has been argued that the USA agreed as if such injury took place in the country where such diversion to pay the downstream benefits to the Canadian water or interference occurs. The Article states: accumulation after the later plan to divert the water of Columbia River into the Fraser River for Canadian absolute "Utilisation and diversion of waters of rivers flowing use.106 However, it must be borne in mind that geographically, into boundary waters, as well as of waters of Canada is both in an upstream and downstream position. successive rivers. Respect for acquired rights with regard to navigation. Each party reserves for itself the 2.7.2 The Treaty of the Colorado & Lower Grande, exclusive jurisdiction and control over the use and 1944 USA-Mexico diversion, whether temporary or permanent, of all waters on its own side of the line which in their This treaty was also the result of a long and complicated natural channels would flow across the boundary or dispute resolution effort between the United States and Mexico. into boundary waters; but it is agreed that any The treaty provision107 provides arrangements for the utilisation interference with or diversion from their natural of the waters of the Colorado and Tijuana rivers, and of the channel of such waters on either side of boundary, Rio-Grande (Rio Bravo).108 The treaty was the most complete resulting in any injury on the other side of the and satisfactory arrangement for the use of those waters by boundary, shall give rise to the same rights and entitle fixing and delimiting the rights of the two countries. However, the injured parties to the same legal remedies as if the treaty provision adopted the notion of equitable utilisation such injury took place in the country where such regardless of the fact that the USA had taken an extreme diversion or interference occurs; but this provision position in the negotiation but later changed her position shall not apply to cases already existing or to cases recognising Mexico’s equitable share in these shared resources. expressly covered by special agreement between the It is the best example of cooperative and equitable sharing of parties."105

106 R. W. Johnson, “The Columbia Basin”, in A.H. Garretson, et al (eds), The Law of International Drainage Basins, New York: Oceana Pub., 1967, pp. 201-211. 104 Supra note 23, p. 221. 107 Supra note 36, pp. 80-83. 105 Supra note 36, p. 73. 108 3 UNTS 995, p. 314. 60 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 61 water between a mighty and weak neighbour whereby the treaty declared that such utilisation would not be acceptable to her.111 ensured Mexico’s reasonable and equitable share. Moreover, Egypt had declared that to deprive her of these water rights was to prepare for war with her.112 In this treaty, 2.7. 3 The Nile River Treaty, 1929 & 1959 Egypt-Sudan the principle of no harm and Egypt's prior appropriation has been heavily advocated and the principle of equitable The first treaty safeguarded Egypt's existing and historic rights utilisation has been largely ignored. and gave all of the benefits to her, neglecting Sudan and seven other upper riparian states’ legitimate rights over the waters of The fact is that Egypt managed to develop a huge network of Nile. Although, this earlier treaty was concluded under the irrigation canals through a gigantic barrage in order to use British colonial regime both in Egypt and Sudan, it protected every drop of water of the Nile. As the western governments Egypt’s interest at Sudan's cost over the shared water resources. and the World Bank refused to finance this work because of The most striking issue in both treaties is that although there are the riparian issues, the then Soviet Union assisted technically nine riparian states within the Nile watercourses, the treaty was as well as financially in order to carry out such a grandiose concluded only between two co-riparians.109 After the project, ignoring the interest of other eight riparians in the Nile decolonisation of Sudan, she rejected outright the earlier treaty stating that it had been made by an alien power, not by the waters. Ethiopia and others are not able to use this water, legitimate representatives of Sudan. As a result, a new treaty despite the fact that they are entitled to their share of it, was concluded. This treaty protected some interests of Sudan, because international assistance is required in order to develop which had not been covered by the earlier one. However, it still any project with no objection from other riparians including recognised the historic rights of Egypt. The main features of the Egypt, which naturally would object to the proposal on the arrangement involve sharing on the basis of the volume of grounds of historic use.113 In this circumstance, the principle water, whereby Sudan received 4 billion cubic metres (CM), of equitable utilisation has been subordinated to the no harm and Egypt 48 billion CM. rule, which is being advocated by Egypt. However, recently Egypt and her upstream states have been working together to The case of the Nile River is extreme in IWL. The fact is that achieve a fair, just and equitable utilisation of these waters Egypt did not contribute any waters from her territory. Unlike Egypt, Ethiopia which contributes most of the waters in Blue Nile, the main tributary of the Nile has been prohibited from 110 utilising the Blue Nile waters even within her own territory. Egypt has been continuously using these waters since times 111 S. E. Smith & Hussein M. Rawly, "The Blue Nile: Potential for dating back to the ancient Nile civilisations. In the given Conflict and Alternatives for Meeting Future Demand" (1990) in 15 circumstances, utilisation of the waters by the upper riparian WI, p. 220. 112 N. Kliot, Water Resources and Conflict in the Middle East, London: states could be a severe blow to Egypt and she had already Routledge, 1994, p. 68. 113 A. H. Garretson, “The Nile Basin”, in A. Garreston et al (eds), The Law of International Drainage Basins, New York: Oceana Pub., 1967, 109 Supra note 36, p. 65. pp. 275: The World Bank and the western government refused to 110 T. Naff & R. C. Matson, Water in Middle East: Conflict or Co- provide loans and other assistance in developing the Aswan dam in operation, Colorado: Westview Press, 1984, pp. 1-16. 1965. It was because the riparian issue was not resolved. 62 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 63 with the World Bank (WB), United Nations Development favour to Pakistan.116 From the viewpoint of needs (Pakistan’s Programme and other bilateral donors assisting these efforts.114 huge population relying on the waters of these rivers) and prior use (Pakistan’s use was greater than India) and the other 2.7.4 The Indus Water Allocation Treaty, 1960 India- considerations spelled out in Article 6 of the UNCIW, this Pakistan division of the rivers has been regarded as equitable. The rule of equitable utilisation dictated this resolution. It is worth This dispute was inherited from the time of unified India. mentioning that the treaty refused to take account of the However, the Indus treaty was concluded between the two ‘drainage basin’ or ‘watercourse’ concept considering the rival states after the conflict over the consumptive use of water whole Indus a unit. Rather the rivers were divided between two of the Indus basin. This treaty was to resolve the problems states. In recent months, in Jammu and Kashmir, an Indian state created after the temporary interruption of water to Pakistan legislature adopted a proposal to repudiate the treaty and asked the federal government to negotiate it again, safeguarding after the partition of India. The main elements of the 117 agreement were:115 All the waters of the eastern rivers, the Indian interests which were ignored earlier. However, the Sultej, Beas, and the Ravi are made available for the resolution is regarded as one of the praiseworthy assignments unrestricted use of India and the western rivers the Indus, carried out by the World Bank in such a complex water issue. Jhelum and Chenab are made available for the unrestricted use of Pakistan. 2.7. 5 The Columbia River Treaty, 1961 USA-Canada

The canal structures had fallen in Indian Territory leaving The treaty primarily covered power development and flood control aspects of the Columbia River Basin. Of the principles Pakistan without such an irrigation network. In order to enable 118 Pakistan to construct a huge irrigation network, India established by this treaty, some of them are regarded as the contributed £ 62,000,000 and a substantial amount of money basic foundation of IWL in regard to the co-operative and joint was provided from the World Bank, USA, UK, Germany and development of a shared river for mutual benefit. However, it is Australia to construct facilities inside Pakistan. The principles stated in the treaty that it would not be construed a precedent or adopted to settle this complex dispute, i.e. reasonable and a general principle of law. Rather, they thought that these equitable utilisation of the waters, to the satisfaction of both special arrangements cover the peculiar circumstances in the states, has major significance in the development of this area Columbia River basin between the two states. and the preservation of peace and security. However, actual allocations of the waters were 80 % to Pakistan and 20 % to In spite of the above, this treaty succeeded in enunciating some India. It was not an equal but equitable division, and it has been milestone principles, norms and criteria for the equitable and severely criticised in India on the ground of inequality and reasonable utilisation of IWC. Particularly, the idea of downstream benefits was first developed and recognised, costs

114 J. Brunnee & S. J. Toope, “The Changing Nile Basin Regime: Does 116 Supra note 22, pp. 280-285. Law Matter ?” (2002) in 42 HILJ, pp. 105-159. 117 Supra note 41, p. 3. 115 419 UNTS, p. 100; also see R. K. Baxter, "The Indus Basin" in A. 118 Supra note 36, pp. 76-78; also see C. B. Bourne, “The Columbia River Garretson, et. al (eds), The Law of International Drainage Basins, New Controversy” (1959) in 37 CBR, pp. 444-472. Generally, the benefits York: Oceana Pub., 1967, pp. 443-478. accrued from the works upstream are called ‘downstream benefits’. 64 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 65 and benefits were equally shared and the project undertaken 2.7.6 Lesotho-Highland Treaty 1986, Lesotho-South jointly. The Columbia River was regarded as a unit and Africa developed along those lines. The concept could be followed in several situations including the Indo-Nepal water issues and The creation of the Lesotho Highland Development Authority other circumstances as well. In fact, Nepal is always insisting under the Lesotho Government was an undertaking responsible on following the concept envisaged in the above treaty, which, for executing the overall provisions of this water transfer treaty. she believes, would provide her the opportunity to have a Under the provision, an annual payment of $ 13.6 million is reasonable and equitable entitlement to her huge water made by South Africa to Lesotho for transferring the waters to resources and it is largely advocated that the said treaty could the former as a royalty over the Lesotho resources. A Joint be the basis to resolve all outstanding issues with her riparian Technical Commission and other commissions have been set up 119 states. Both Canada and Nepal have huge water resources, its to frame policies and implement the provisions of the treaty. utilisation requires cooperation from downstream neighbours, Electricity generation of 73.4 MW in 1995 and 276 MW up to USA and India, by paying benefits they accrued from the work 2001 for Lesotho are the benefits set against the cost incurred of upstream countries. This is because in order to maximise by South Africa. Lesotho received WB financing for those benefits, construction of dams and reservoirs in upstream hydroelectric projects. In lieu of the water transfer to South- countries is essential. That causes inundation of land, Africa, she paid money to Lesotho. resettlement of people, extinction of flora and fauna etc, but provides huge benefits downstream. These include flood This treaty, which could be a unique type of sharing of benefits benefits, hydropower, irrigation and others. The benefits should by transferring waters of an entire river, represents both be shared mutually. Canada and the United States were able to interests and benefits. Boadu has said that the concept drawn maximise such benefits by agreeing to share both costs and from the 'transaction costs literature' ( “The costs associated benefits from the work among themselves. The situation over with the process of buying and selling. These are small frictions the Columbia River basin and Nepal and India’s problem both in the economic sphere that often explain why the price system occur because of disputes as to the sharing of downstream does not operate perfectly.”120) was used to analyse the benefits. Such problems can be resolved by adopting the governance structure of the trans-boundary water treaty downstream benefit principle, and the national interests of both between the two states. In the context of international treaties, upstream and downstream states could be accommodated, ‘transaction costs’ refers to those costs associated with creating ‘win-win’ situations. The treaty has set up a new interactions between nations. These include “information, dimension on how a relatively weak neighbour was enabled to contracting and policing costs (ICP)”.121 However, the make agreement with a powerful nation in which equity and opposition party in South Africa criticised the treaty, calling it fairness were obtained for both. ‘surrender of sovereignty to a much smaller country’.

120 G. Bannock, R. E. Baxter & E. Davis, The Penguin Dictionary of Economics, London: Penguin Books, 1992, p. 426. 121 F. O. Boadu, "Rational Characteristics of Trans-boundary Water 119 B. G. Verghese, Waters of Hope, New Delhi: Oxford IBH Pub., 1990, Treaties: Lesotho Water Transfer Treaty with the Republic of South p. 345. Africa" (1998) 38 NRJ, pp. 381-403. 66 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 67 2.7.7 Treaty for Amazon Co-operation, 1978 Bolivia- river basin for the mutual benefits of its members. They have Brazil-Columbia-Guynana-Peru -Surinam and established the South-African Power Pool (SAPP) aiming to Venezuela link SADC member states into a single electricity grid in which member states exchange electrical power. It also provides a The treaty aimed to undertake joint action and efforts to good example of multilateral river basin development through promote the harmonious development of Amazonian territories the involvement of all riparian watercourse states, because its in such a way that these collective actions produced equitable implementation is underway and leading towards a cooperative and mutually beneficial results and also achieved the and successful completion. The parties have also negotiated a preservation of the environment. The contracting parties were protocol in 1995, revised in 2002, for the effective to make efforts aimed at achieving rational utilisation of the implementation of other projects for common benefit. It is one resources.122 This shows that the extra benefits could accrue of the good examples of multinational efforts to attain a from a resource that was developed by a group of riparian sustainable, and equitable utilisation and sharing of common nations considering a river as a unit for mutual benefit. Under resources. the treaty, several water resource projects were implemented. The arrangement covered the concept of equitable utilisation 2.7.9 Utilisation of the Parana River, Guaira Falls and and attainment of maximum benefits for all states. Ygazu River, 1973 Paraguay and Brazil

2.7.8 Agreement on the Environmentally Sound This Treaty, also referred to as the Treaty of ITAIPU, was Management of the Common Zambezi River concluded between the said states for the exploitation of the System 1987, Southern Africa Development hydroelectric resources of the Parana River, including the Community (SADC) Guaira falls up to the mouth of the Ygunazu River.124 It includes the world’s second biggest hydropower plant with a This agreement was concluded between Angola, Botswana, capacity of 12,500 MW. The following principles are envisaged Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, in the treaty: Seychelles, South-Africa, Swaziland, Zimbabwe-Tanzania and Zambia. The project is being executed by the establishment of Creation of ITAIPU, a bi-national entity was formed out of an inter-governmental monitoring and co-ordinating committee, equality of rights and obligations with the scope of carrying out a co-ordinating unit and a Trust Fund under the Council of hydroelectric exploitation. ITAIPU is jointly and equally Ministers of SADC or through an institutional and financial 123 owned by the two nations, with 50 % of the capital owned by arrangement under this Trust Fund. The aims of the agreement are to manage, share and preserve an Electrobras, the Brazilian federal power authority, and ANDE, environmentally sound and comprehensive plan in the Zambezi the Paraguan national power agency. Either state is entitled to

124 9 ILM (1980), pp. 615-617; also see S. B. Pun, “Landlocked and 122 17 ILM (1978), pp. 1045-1053. http://www.transboundarywaters.orst. Hydropower Rich Paraguay, Bhutan and Nepal: Cases of Lamed Duck, edu/projects/cases/Lesotho.html Flying Geese and Sitting Duck” in NepalNet, (an electronic networking 123 27 ILM (1988), pp. 1109-1143; also see www.eia.doe.gov/emau/ for sustainable development in Nepal), pp. 1-4. See cabs/sadc.html. www.solar.coppe.ufrj.br/itaipu.html. 68 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 69 purchase energy not used by the other for its own consumption. 2.7.11 Co-operation for the Sustainable Development This treaty provides one of the successful implementations of a of the Mekong River, 1995 Thailand, Laos, jointly developed project through the involvement of both Cambodia and the Vietnam riparian states for their mutual benefit. Countries of south Asia needs to learn from the positive and negative implications of It is one of the successful multilateral treaties that conceived this treaty. norms of reasonable, equitable and sustainable use of common resources in a co-operative manner, thus implementing the 2.7.10 The Treaty of Peace 1994 Israel, Jordan and recognised norms of customary international law. This agreement, consisting of 42 Articles, is the best example of the Palestine Liberation Organisation (PLO) comprehensive and integrated development of the lower Mekong river basin jointly by the watercourse states.127 The This Treaty is a part of an integrated Peace Treaty to resolve treaty provisions have asserted the holistic and integrated use the outstanding problems between Arab states and Israel,125 in (hydropower, irrigation, and other uses together) of the waters which efforts to resolve the outstanding conflicts on sharing of the Mekong River. However, it could be argued that the and allocation of common water resources were made. Article 6 upper riparian China had neither been involved in the and Annex 2 deal with the sharing and allocation of waters and arrangement nor recognised this agreement. However, her firm the rights and duties of both states in relation to the surface and stand on territorial sovereignty principles revealed her groundwater resources on the common terminus. It provides for willingness to maintain this principle.128 China had, in the the allocation of waters in each of the seasons, methods to upper reach of the Mekong, separately developed several increase the volume of water and clearly prohibits the projects within her territory and ignored the interests of other detrimental use of such shared resources, envisaging the downstream states. guarantee of quality, and safeguards against pollution and The basic features of the treaty include the following. contamination of the waters. Later, Israel, Jordan and the PLO Minimum monthly natural flow is guaranteed. In order to execute the project, the Mekong Commission created and made concluded an agreement, under the auspices of Norwegian responsible under it, a secretariat and joint committees Peace initiatives, on allocation of waters from their shared represented by all member states. Co-operation is based on resources, which provides co-operative, sustainable and reasonable, sustainable and equitable sharing and utilisation to 126 equitable use of surface as well as groundwater. The the satisfaction of all member states and attenuated according to availability of the water in this region is very scarce because environmental considerations. All works in the basin are co- this area is located in arid geographical terrain; its shortage ordinated by the Commission. The United Nations organs poses a threat to long-term peace and security. ESCAP, UNDP, ADB and the World Bank have been providing assistance to the Mekong Commission to implement

127 34 ILM (1995), pp. 864-880. 125 34 ILM (1995), pp. 43-54. 128 During debate on UNCIW Gao Feng had advocated this principle. 126 36 ILM (1997), pp. 763-770. Press Release GA/9248. 70 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 71 the treaty provisions.129 Furthermore, it furnishes a unique been set out in the previous agreement of 1977. Moreover, example of cooperation between Thailand and Laos, in which India also agreed to a plan to construct a Ganges Barrage 20 km the former is guaranteed not only purchase of electricity to be inside of Bangladesh territory to hold up the floodwaters for generated by the latter, and a sovereign guarantee to the dry season use. This was previously refused by India stating international capital market and banks to provide loan money to that the back up of water would be detrimental. This was a develop the Laotian projects.130 major breakthrough achieved by this treaty.132 The main characteristics are based on equitable sharing of water 2.7.12 Treaty on Sharing of the Ganges Waters at resources and adoption of no harm to either state in using the Farakka, 1996 India-Bangladesh waters of their common rivers.

The Treaty, which replaced the earlier 1977 treaty, has been 2.8 The Impact of Water Issues on Bilateral instrumental in resolving the outstanding and chronic dispute Relations over the Ganges water in an equitable and reasonable manner, 131 which reconciles their mutual interests. The main features of From the state practice explained above, it is clear that water the said arrangement are as follows: sharing and allocation issues have profoundly influenced the bilateral relations of states and also inter-state relations within a The quantum of waters released by India to Bangladesh will be federal set up.133 Water matters directly influence the relation at Farakka. Both governments will be entitled to a 50% of share of Egypt with her upper-riparian states. In south Asia, India's (without any prejudice to the existing uses of each relations with Bangladesh, Bhutan and Nepal are largely government). Minimum flows to both states during the dry influenced by water134 issues. In North America, relations season are guaranteed a prescribed quantum. Arrangement of a between Canada and USA, and USA and Mexico are joint Technical Committee and a Joint River Commission has influenced by water. Water has been described as the oil of the been made in order to execute the provisions of the Treaty (in 21st century and it is predicted that if the problem of water equal representation by both governments). Very long, sharing and allocation is not sorted out in a timely way, as contentious and complex conflicts between the two neighbours argued by several authors, a third world war is inevitable.135 As have been resolved. However, there is still some dissatisfaction described earlier, in the water dispute between Arizona and from the Bangladesh side over the allocation of water, particularly in the dry season: in the event of unexpectedly 132 S. M.A. Salman, “Sharing the Ganges Waters Between India and diminished flow, there is no provision to regulate it, as it had Bangladesh: An Analysis of the 1996 Treaty” in S. M. A. Salman & L. B. De Chzournes (eds), International Watercourses : Enhancing 129 S. M. A. Salman & L. B. De Chzournes (eds), “Conclusion” in Cooperation and Management Conflict, Washington D.C: The World International Watercourses: Enhancing Cooperation and Management Bank Technical Paper No 414, The World Bank, 1998, pp. 143-151. Conflict, Washington DC: The World Bank Technical Paper No 414, 133 A. Utton, "In search of an Integrating Principle for Inter-State Water The World Bank, 1998, p. 170. Law: Regulation versus Market Place" (1985) in 25 NRJ, p. 992. 130 P. Chomchai, “Management of Transboundary Water Resources: A 134 T. Upreti, “The Perspective on Downstream Benefits" the Kathmandu Case study of the Mekong” in M. I. Glassner (ed), The United Nations Post, 24 June 2000, p. 6. at Work, Westport CT: Praeger, 1998, pp 245-255; also see 135 Http//www.worldbank.org/; Lecture by J. Wolfensohn in November www.mrcmekong.org 11, 1999. The RAF Penrose Memorial Lecture at the American 131 Supra note 126, pp. 519-527. Philosophical Society, Philadelphia. 72 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 73 California, the governor of Arizona sent her troops to avert the of so much significance for the existence of a state that states water project of its contestant, California. Later, the problem have gone to armed conflict for the sake of water. During the was solved by the decision of the Supreme Court of the USA in Israel- Arab war of 1967, Israel annexed the Golan Heights, 1963.136 There are several issues on water sharing and which is a major source of Middle-Eastern water including that allocation in India, within interstate disputes, which are of the Jordan River. One of the main factors leading to Israel’s increasing political tensions and challenging the federal aggression in Lebanon in 1978 and the annexation of structure.137 Similar problems exist between Punjab and Sind in Palestinian land was water.139 However, Israel and Jordan have Pakistan. Some of the conflicts have been resolved by long concluded a treaty regarding the sharing and division of River effort and care and some still need to be resolved to the Jordan water. satisfaction of the contestant states. Such problems exist not only in one country or continent, but also wherever water is In Asia, India and Pakistan have had a belligerent relationship; scarce and its use under stress, particularly in developing one of the reasons was the water of the Indus and the Ganges. countries. The increasing tensions and problems in the Euphrates-Tigris basin with respect to water sharing issues have also resulted With regard to the Israel-Arab tension, in which one of the disputes between Turkey, Syria and Iraq.140 Several tensions main reasons is always water issues,138 the Israeli Government had escalated to the point of troop deployments along borders, threatened the Arab water diversion plan on several occasions, but later an agreement was concluded. 141 On the basis of that stating that diversion of the head waters of the Jordan River agreement and the assurance of uninterrupted water to be would constitute an outright attack on one of Israel's means of provided to Syria and Iraq by upstream Turkey, tensions were livelihood, and would be regarded as a threat to peace. In the eased. It is understood that the South Anatolia project of same line, Arabs also consider Israel's water plan to be against Turkey has severely impaired the share of water to her their very existence. Further to the escalation of the dispute by downstream states. The position of Iraq is particularly the Arab water plan, Israel again warned that water is a vulnerable, as she has been denied her historic uninterrupted question of life for her and that she would regard any attempt to flow of the rivers by the upstream states and 30% of arable land prevent it from using the water it had been allotted under the Johnston United Plan as a violation of its very right to exist (the Johnston Plan was prepared by a US representative to resolve the water dispute between the Jews and the Arabs). The issue is 139 Supra note 112, pp. 67-68; also see S. Gupta, “In Israel and Lebanon, Talk of War over Water” , New York Times, 16 October, 2002. 140 Ibid. pp. 116-123; Turkish President Suleman has said that “we do not 136 Supra note 20, pp. 158. say we should share their oil resources and they can not say that they 137 Staff, “Karnataka Boycotts Cavery Meet” , The Times of India 18 May should share our water resources” in G. W. Sherk, P. Wouters 2000, The meeting was called by the Indian PM on the request of & S. Rochford, “Water Wars in Near Future? Reconciling another contestant state Tamil Nadu, which was boycotted by the Competing Claims for the World’s Diminishing Fresh Water former, alleging that the centre is working in haste. Also see, “No Resources-The Challenge of the Next Millennium” in Consensus on Draft Water Policy” , The Times of India 8 July 2000. www.dundee.ac.uk/cepmlp/journal/ html/article3-2. Southern States criticise the policy alleging it will change the power 141 A. Wolf, “A Hydro Political History of the Nile, Jordan And Euphrates structure between the centre and the state and the existing water Rivers Basin” in A. K. Biswas (ed), International Waters of the Middle sharing arrangements between states. East, From Euphrates –Tigris to Nile, Oxford: Oxford University, 138 Supra note 2, p. 373. 1994, pp. 29-37. 74 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 75 has been abandoned because of salt contamination142resulting riparian states and to, some extent, ignoring the rules of from bad irrigation practices and non-cooperation from customary international law. The proposed unilateral diversion upstream states. of the Jordan River by the Arabs ignored the interest of Israel (an Israeli military attack later destroyed the diversion). Israel Even on the continent of Europe, until the beginning of 19th carried out similar unilateral use of the Jordan headwater after century there were conflicts and disputes regarding the the 1967 war. The unilateral diversion of the Chicago River by Navigational and Non-Navigational use of the Danube, Meuse, the United States ignoring Canadian interests is another breach Seine and Rhine rivers, which were later resolved through of IWL. Furthermore, unilateral diversion of the Ganges by negotiations and treaty-agreements.143 Apart from this, the EEC India at Farakka ignoring the interests of the then East Pakistan has issued several directives with regard to fresh water and its (Bangladesh) and temporary interruption of the Indus waters by utilisation.144Until recently, there was conflict between India in 1948, are examples of illegal and unilateral Hungary and Slovakia over the sharing of waters and its interventions in shared watercourses.146 Apart from these benefits from the Danube River and, even after the judgement extreme cases, there are good examples where the spirit of of ICJ in relation to their case, the problem has yet to be settled. cooperation, negotiation and conclusion of an agreement have prevailed as positive developments in the area of IWC. Water conflicts are mostly settled by agreements. The best way to accommodate the interest of all watercourse states is through As Berber suggests, it is a widely recognised fact from 145 a balanced plan and execution of the plan. However, there experience that resolution of the water conflicts cannot always are some instances of unilateral action in utilising ‘shared’ be through a court of law.147 The appropriate way, rather, is for resources for one’s own sake, ignoring the rights of other states themselves to resolve the conflicts through direct 148 negotiation and conclusion of an agreement. What is more, 142 P. Brown, “Unless We Change Our Ways, the World Face Disaster, A the disputes in relation to the allocation and sharing of water UN Report says” The Guardian, 23 May 2002, p. 3. are complex issues, and resolution is only possible when the 143 P. Costa, "The Effects of War on the Treaties Establishing the Legal proper knowledge and expertise are addressed to such technical Regime of the Danube" pp. 406-408 ; also see, Menno T. 149 Kamminga,"Who can Clean up the Rhine: The European Community and complex issues. Generally, courts lack such or The International Rhine Commission?” in R. Zacklin and L. specialisation. In order to achieve this goal, there are Caflisch (eds), The Legal Regime of International Rivers and Lakes, the Hague: Martinus Nijhoff Pub., 1981, pp. 371-373. 144 For example Directives on the approximation of the Laws of the 146 C. B. Bourne, "Procedure in the Development of International Member States relating to Detergents 1973, the Quality required of Drainage Basin: The Duty to Consult and to Negotiate "(1972) in X Surfaced Water intended for the Abstraction of Drinking Water in the CYIL, p. 214. member state, and the Quality of Bathing Water, 1975 etc. 147 F. J. Berber, Rivers in International Law, London: Institute of World 145 D. A. Caponera, "Patterns of Co-operation in International Water Law: Affairs, 1959, p.50 Principles and Institutions " (1985) in 25 NRJ, pp. 563-588. Also see 148 Ibid. p. 272. A. E. Utton “In Search of An Integrating Principle for Interstate Water 149 Regarding the sharing; allocation, delimiting of the continental shelf Law: Regulation versus the Market Place” (1985) 25 NRJ, pp. 985- and fishing issues, after the decisions of the ICJ, states themselves 1004. Generally regulations (known as a rule) infer the rule of resolve their differences on the basis of guidance provided in the equitable apportionment whilst the market place (known for beneficial judgements. The Gavicikovo-Nagymaros case is also expected to be uses) refers to efficient uses of waters. resolve along the same lines. 76 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 77 constitutional and legal arrangements made in each state. For 2. 9 International Law Reform Efforts example, the Indian Constitution, 1948 forbade the Supreme Court and other courts to exercise their jurisdiction over water In this section, analysis of IWL in light of the above will be issues.150 In Italy, South Africa and the Scandinavian countries made and several institutions efforts on codification will be there are separate water courts, and water issues are beyond the made. jurisdiction of other courts.151 Moreover, the SADC treaty and protocol provides for a 2.9.1 The Helsinki Rules on the Use of the Waters of separate water court to provide its opinion and resolve all International Rivers, 1966 and the ILA disputes within its jurisdiction. That is to say generally, regular courts are not specialists in water disputes, and therefore either These are the first rules applicable to international water disputes with a holistic and integrated approach. The rules, special tribunals or separate water courts have been constituted however, were adopted by a non-governmental organisation, in the above examples. Even in the general courts, for example and are not legally binding. The rules consist of six chapters, 37 in the case of the USA, special Masters’ findings and advice Articles with one Annex. Substantial principles enunciated in play a vital role in the adjudication of water resources conflicts. the rules must be evaluated in order to appreciate them.154 The In this context, Bourne observed that the best way of resolving first approach, of importance, is the drainage basin approach, water related conflict is through negotiation.152 International which has already been described in the preceding chapter. A law provides general guidelines, but states themselves must drainage basin is an indispensable unit regardless of the work according to the concept of law. In concluding this political boundary. Therefore, the rules take into consideration section, state practices and treaty provisions do not provide the interest of other states so that no state considered free to use single rules or practice; however, the majority of such practices the waters as it pleases, undermining the interest of the others. indicate that equitable utilisation is the established and The core of the entire rules is equitable utilisation of recognised rule in IWL. However, the area needs to be international drainage basins which is encapsulated in Article IV and will be discussed later. developed and enunciation of rules that can be applied universally is yet to be developed. It is apparent that whatever 153 Article V stipulates the relevant factors, determining whether a principles have been developed so far are still inchoate. certain use does or does not constitute an equitable and reasonable use of an international basin. The details of these instruments and the far-reaching effects of such rules will be analysed in the upcoming Chapter Three. Article VI embodies 150 Supra note 22, p. 231, Article 262 of the Indian Constitution, 1950 and the Inter-State Waters Dispute Act, 1956 prohibit Supreme Court and that no use is entitled to any inherent preference over any other other Court jurisdiction on inter-state water disputes. use or category of uses. Article VII provides that no basin state 151 M. Fitzmaurice,"Water management in the 21st Century" in A. Anghie is to be denied the present reasonable use of the waters of an & G. Sturgess (eds), Legal Vision of the 21st Century: Essays in international drainage basin to reserve a future use of such Honour of Judge C. Weeramantry, the Hague: Kluwer Law, 1998, pp. waters for a co-basin state. Article VIII spells out the 425-463. 152 Supra note 65, p. 90 153 Supra note 7, pp. 215-231. 154 The Helsinki Rules of the ILA 1966 (fifty-two session) pp. 478-532. 78 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 79 justification of an existing use in specific circumstances. governing the utilisation of international waters in 1954.157 Consistent with the principle of equitable utilisation, states are There was a demand for universally applicable rules with a prohibited from acting merely as they please or against the holistic and integrated development approach from the conditions embodied in Article X.155 Article XI stipulates that if international community. In such circumstances, a committee Article X is violated, then such responsible states must was constituted under the chairmanship of Clyde Eagleton. The negotiate, and cease to conduct themselves in a wrongful committee, also known as the River Committee, submitted its manner and compensate the harmed state in case of any injury report, which later was adopted by the ILA in Helsinki in 1966. already incurred. Chapter 4 deals with navigation; Chapter 5 with timber floating; Chapter 6 relates to procedures for the The ILA took account of state practices around the globe, prevention and settlement of disputes; and Annex A contains comments and observations of learned societies and the Model Rules for the constitution of the conciliation commission decisions of courts and tribunals. These rules enacted by the for the settlement of dispute. In fact many elements of the rules committee are holistic, integrated and serve as universal were already state practices recognised by the international jurisdiction rules.158 Although the members of the committee or community. The Helsinki rules are the foundation for the association did represent their nations, it was in their personal recently adopted UNCIW with most of the principles, e.g., capacity that the rules were formulated, not as government principle of equitable utilisation and no harm rule, inherited representatives. There is a water resources committee under the from it.156 ILA that is still involved in developing and adopting the equitable rules of IWC.159 Until now the Water Resources The magnitude of the problems in the Nile basin, Indus, Committee has been reviewing the 1966 Helsinki rules and Columbia and Great Lakes in North America and Jordan was several meetings of the ILA have taken place, e.g., London and very serious and posed a threat to peace and security. At the New Delhi conferences in 2000 and 2002, reviewing the outset of these disputes, the ILA had begun work on the law progress. The committee has reviewed general principles of water management and public participation, integrating the

155 Article X, “(1) Consistent with the principle of equitable utilisation of principles of IWL and sustainable development. Furthermore, it the waters of an international drainage basin, a state has also been incorporating modern standards governing a. must prevent any new form of water pollution or any navigation on international or transboundary water, re- increase in the degree of existing water pollution in an examining the principles of water administration and resolving international drainage basin which would cause substantially international disputes related to IWC. injury in the territory of a co-basin state, and b. should take all reasonable measures to abate existing water pollution in an international drainage basin which to such an In the context of separate drainage basins, each state has extent that no substantial damage is caused in the territory of different views. It was obvious that addressing the divergent a co-basin state; interests and views through a single set of universal rules was (2) the rule stated in paragraph 1 of this article applies to water pollution originating: a. within a territory of the state, or 157 Ibid. p 155. b. outside the territory of the state, if it is caused by the state's 158 Ibid. pp 158-164. conduct.” 159 Presently the committee is involved in the codification and drafting 156 C B. Bourne, "The International Law Association 's Contribution to process and recently they held a meeting about the amendment of 1966 International Water Resources Law" (1996) in 36 NRJ, pp. 160-166. Helsinki Rules in Vienna. See www.ila-hq.org. 80 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 81 itself a complicated task for the committee.160 To fulfil its Assembly of the League of Nations created a standing organ assignment, the ILA undertook several conferences viz., called the Committee of Experts for the progressive Dubrovnik 1956, New York 1958, Tokyo 1964 and finally codification of international law, which consisted of seventeen Helsinki 1966, where the rules were adopted. During the members.167 The institution continued even after the endeavour, lively discussions were held amongst the members establishment of the United Nations. Article 13 of the Charter of the committee on issues ranging from downstream and of the United Nations provides that: upstream benefits, issues of equitable utilisation and issues of existing and future uses including other aspects of allocation of “The General Assembly shall initiate studies and water and sharing of benefits therefrom. Eventually, the make recommendations for the purpose of: Helsinki Rules 1966 adopted the single basin approach along a. … encouraging the progressive development of with the main principle of equitable utilisation.161 The drainage international law and its codification”168 basin approach constituted the primary consensus among the committee members at the very outset of the work, which has Thus, the ILC was established by the United Nations General been defined in Article II.162 Assembly (UNGA) in 1947169 in order to promote the progressive development of international law and its The principles of equitable utilisation became the core law codification. 34 members were elected by UNGA for a five though there was strong opposition from several scholars and years term in an individual capacity (not as state the basis of their criticism was 'the ideas regarding the concept representatives).170 of equitable sharing are not clear and states must be free to develop their uses in accordance with their needs.’163 The lack The UNGA Resolution 2669 (XXV) of December 8, 1970 of a precise definition of equitable utilisation is also a reason recommended to the ILC to initiate works on UNCIW. After for criticism. Nonetheless, the ILA contribution is quoted in sustained hard work for about twenty- five years, the ILC many treaties164, state practices and judicial decisions.165 It is finally adopted the said rules in 1994 in its forty-sixth session also regarded as the foundation of the 1997 UNCIW.166 and submitted them to the UNGA. From that time, deliberations were made by its different members, and 5 2. 9. 2 International Law Commission Special Rapporteurs.171 As a result of the profound contributions made by well-known scholars on the subject and The idea of developing international law through the the intense efforts of the international community, the UN restatement of existing rules or formulation of new rules is not Convention on Non-Navigational Uses of International of recent origin. On 22 September 1924, the resolution of the

167 www.un.org/law/ilc/introfra.htm 160 Supra note 8, pp. 233-35. 168 Supra note 54, p. 1052. 161 Ibid. pp. 236 & 249. 169 S. C. McCaffrey, "Background and Overview of the International Law 162 YBILA (1966), pp. 484. Commission's Study of the Non-Navigational Uses of International 163 Supra note 8, p. 281. Watercourses" (1992) in 3 CJIEL & P, p. 18. 164 Mekong treaty in 34 ILM, (1995), pp. 864 880. 170 II YBILC (1994), p. 15. 165 Supra note 22, pp. 280, 319-20. 171 Richard Kinary, Stephen Schbell, Evansen, Stephan C. McCaffrey and 166 YBILC (1982), p. 82, YBILC (1983) p. 130. Rosentok. 82 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 83 Watercourses was adopted on May 21, 1997 by the UNGA172. waters of an international watercourse system of For the convention to come into force, ratification by 35 which it is a system state”.175 member states is required. So far enough ratifications have not been received and it seems the convention will not come into He linked this article with article 8 'Responsibility for force in the foreseeable future.173 However, it is not unusual for appreciable harm' that equitable utilisation is the primary important and perhaps controversial conventions to take some principle of IWL; that is to say, if any harm is inflicted in the time to come into force. For example the Law of the Sea use of an IWC, such use comes under the rule of equitable Conference (LOSC) was approved the UNGA on 10 December, utilisation. Paragraph 1 of that article read as follows: 1982, but did not enter in force until November 16, 1994. The “The right of a system State to use the water UNCIW, even though not yet in force, still will provide resources of an international watercourse system is influential guidance for states. limited by the duty not to cause appreciable harm to the interests of another system State, except as The ILC in its first task asked the member states in 1974 to may be allowable under a determination for answer its questions, viz. the scope of the proposed study, the equitable participation for the international water uses to be considered, whether the problem of pollution watercourse system involved”176 should be given priority, the need to deal with flood control and erosion problems and the interrelationship between As Bourne argued, navigational and other uses. In the same year, the commission "for Judge Schwebel, then, the principle of 'no appointed Ambassador Richard D. Kenary of the USA as appreciable harm' must on occasion yield to that of Special Rapporteur for its work on IWC. He first developed equitable utilisation. In Schwebel's view, several questions and sent them to the member states for appreciable harm is not the decisive factor in comments. By 1976, only 21 states had replied to the determining the legality of a utilization of the commission. Not much progress was achieved other than a waters of an international watercourse, though it is report submitted by the Special Rapporteur.174 very important, and undoubtedly often the overriding - factor in that determination.” 177 The second Special Rapporteur, Schwebel, undertook to draft the first landmark work of the ILC. His third report, submitted After Schwebel, Evansen succeeded him. He provided a draft in 1981, considers the basic rules of IWL. As a matter of fact, convention of thirty-nine Articles in 1982. Like Schwebel, he his two fundamental works were, Article 6, the principle of also strongly endorsed the principle of equitable utilisation in equitable utilisation, which states: his first and second revised draft of 1984; Article 6 read as “without its consent, a state may not be denied its follows: equitable participation in the utilisation of the

175 The Law of Non-Navigational Uses of International Watercourses, UN 172 Supra note 125, pp. 700-72 DOC.A/CN.4/348 and corr.1; reprinted in 1982, 2(1) YBILC 65, art.6, 173 www.internationalwaterlaw.org/unciw/status: Till 15 August 2002, para 2,at 85 UNDOC A/CN.4/SER.A/1982/ADD.1. twenty countries have ratified it. 176 Ibid. p. 103. 174 Supra note 1 pp. 18-19. 177 Supra note 65, p. 74. 84 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 85 “1. A watercourse state is, within its territory, McCaffrey has held the view that (during the discussion in entitled to a reasonable and equitable share of the ILC): uses of the waters of an international watercourse. 2. To the extent that the use of the waters of an “in the view of many specialists, the most fundamental international watercourse within the territory of one principle of international water law is that of ‘equitable watercourse state affects the use of the waters of utilization’. Thus, for example, a downstream state that the watercourse in the territory of another was first to develop its waters resources could not watercourse State, the watercourse State concerned foreclose later development by an upstream state by shall share in the use of the waters … in a demonstrating that the later development would cause it reasonable and equitable manner in accordance harm; under the doctrine of equitable utilization, the with the articles of the present Convention …”178 fact that the downstream state was ‘first to develop' (and thus had made prior uses that would be adversely However, Evensen has radically changed the 'no appreciable affected by new upstream uses) would be merely one of harm’ rule omitting the exception clause Schwebel had the number of factors to be taken into consideration in adopted. Eventually, he made 'no appreciable harm' the arriving at an equitable allocation of the uses and dominant rule, a rule that was not to yield to the consideration benefits of the watercourse.”181 of equity and reasonableness in the sharing of waters. A convincing argument, however, was not given for this He further gives the reasons for their belief. These observers change.179 That is to say, as the reverse of Scwebel’s stand, believe that if the 'no harm' principle took precedence over that Evensen made the 'no-harm rule' the substantive rule of an IWC of equitable utilisation the effect would be to freeze the and the reasonable and equitable rule subordinate to that rule. development by many riparian states of international watercourses. He expounded the approach of the ILC to this McCaffrey replaced him as Special Rapporteur in 1985. He problem with reference to an excerpt from the commentary to inherited two sets of draft Articles that reflected a fundamental articles 8: difference on the substance of the basic principle of IWL. After “(P)rima facie, at least (,) utilization of an discussion, the ILC ultimately adopted Evensen's draft Article international watercourse (system) is not equitable if that had made the no harm rule the dominating concept of the it causes other watercourses states appreciable rules. Unlike Evensen, McCaffrey tried to give the reason harm…The commission recognizes; however, that in behind the concepts of equitable utilisation and 'no appreciable some instances the achievement of equitable and harm'. His position is in line with the concept and opinion of reasonable utilisation will depend upon the toleration Schwebel with regard to the two concepts. It is obvious, in the by one or more watercourses States of a measure of discussion of the ILC that some of its members supported harm. In these cases, the necessary accommodations McCaffrey while others were supportive of Evensen.180 would be arrived at through specific agreements.”182

178 The Law of the Non-Navigational Uses of International Watercourses. 181 S. C. McCaffrey, "The Law of International Watercourses: some UN DOC. A/CN.4/381 (1984), also see Ibid. pp. 91-92 Recent Development and Unanswered Questions" (1989) in 15 179 Supra note 65, pp. 75-76 DJIL&P, p. 505-526. 180 Ibid. p. 77 182 Ibid. p. 509, 510; also see supra note 65, p. 77. 86 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 87 He has given three defences of the ILC commentary, in an ILC that some minor injury or harm may occur when equitable effort to convince the states that hold the above-mentioned utilisation is being made by a state that may result in an view in relation to equitable utilisation. One reason is that its erroneous benefit, while at the same time, it may cause minor approach affords a measure of protection to the weaker state injury to the other watercourse state. Such an example would be that has suffered harm. It is not open to the stronger state to the case of a watercourse state that builds a dam, which would justify a use that gives rise to harm on the ground that it is provide hydroelectric power to hundreds of thousands of people 'equitable'. The second reason is that it is far simpler to but would cause significant harm to a few hundred people in determine whether the 'no harm' rule has been breached than another riparian state whose recreational fishing would be would be if water uses were governed in the first instance by destroyed. Taking into account the factors listed in Article 6, the more flexible (and consequently less clear) rule of equitable the most likely conclusion would be that in this hypothetical utilisation. Thirdly, the 'no harm' rule is preferable in cases case, the construction of the dam was reasonable and equitable involving pollution and other threats to the environment. While even though it caused significant harm to the other riparian a state could conceivably seek to justify an activity resulting in state. However, maximum attention should be given to such harm as being 'equitable use', the 'no harm' principle eliminate, mitigate and reduce the harm to the other riparian would- at least prima facie- require the abatement of the state, by the work of upstream state.186 injurious activity.183 If one studied from the outset the adoption of this rule by the In the long run, however, 'appreciable harm' was not defined ILC and the UNGA, it is apparent that there have always been but was replaced by 'due diligence' in the ILC's final adoption divergent views between the no appreciable harm and of the rule in 1994.187 With regard to the no appreciable harm ‘equitable utilisation’ rules. However, harm that threatens view, the harm could not become the subordinate rule of human health or safety or poses a grave or long-lasting threat to equitable utilisation. Rather, harm caused by a watercourse the environment, should not be protected by the equitable state to the other state should be dealt with seriously and utilisation rule.184 As demonstrated earlier, the major points of severely. However, from the ILC commentary,188 while conflict were that these rules favour upstream or downstream, supporting the notion of no appreciable harm, three cases are equitable utilisation versus no harm, whichever rule prevailed given, namely, the Corfu Channel case, the Trial Smelter over the other, etc. With regard to the conflict between the no arbitration, and Lake Launox arbitration. The only case, which harm and equitable utilisation, the majority of opinion (in the is directly related to a watercourse, is the Lake Lanoux ILC and the UNGA discussion) was in favour of equitable arbitration between France and Spain. utilisation that has been accepted as an established and customary law of IWC.185 However, there is some flexibility in The critique of this no harm rule is given in the example of Article IV of US-Canada 1909 Boundary Water Treaty, which provides that ‘the waters herein defined as boundary waters and 183 Fourth report- on the Law on Non-Navigational Uses of International waters flowing across the boundary shall not be polluted on Watercourses, UNGAOR, ILC, 40th session. at 14 UN DOC.A/CN.4/ 412/Add.2 1988. 184 S. C. McCaffrey, "The International Law Commission Adopt Draft Articles on International Watercourses" (1995) in 89 AJIL, pp. 395- 186 Ibid. pp. 167-189. 404. 187 Ibid. 185 II (1) YBILC (1994), pp. 167-168. 188 Ibid. 88 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 89 either side to the injury of health or property on the other'.189 According to McCaffrey,193 in the contexts of Ethiopia and This treaty has explicitly prohibited transfrontier harm, but Nepal, if the downstream states are authorised to have a veto as these provisions did not work at all. As a result, to reverse and demonstrated above, upstream states could never develop any avert this harm these states negotiated another treaty which was water project within their own territories; and this would mean based on Article IV (based on no harm rule) of Boundary Water extreme injustice to them. In this sense, India cannot object to Treaty 1909. But from the time of the treaty until 1992, the Nepal carrying out new water projects. boundary waters of the Great Lakes were seriously polluted even after the conclusion of the new treaty. The Great Lakes The ILC has also addressed the question of non-discrimination. Water Quality Agreement, 1972 (revised 1978) was an attempt From the point of the Trail Smelter case, extraterritorial to reverse the degree of pollution.190 So it is one of the best pollution impacts upon the US and Canada, which have been examples of the failure of the no appreciable harm principle (in dealt with using the concept of non-discrimination.194 No- Article IV of the said treaty).191 The first of these Treaties discrimination refers to the principle that a citizen of either based on the no harm rule did not work at all, and has become country may take action in national courts to combat the foremost example of the limitation of that rule. The two exterritorial pollution. In this context, the drafting committee subsequent Treaties have relied heavily on transboundary had forwarded to the full commission for its consideration the cooperation to achieve success. Also, another example of the article titled Non-Discrimination Clause, "recourse under problematic application of this rule was on the Flathead River domestic law.” The non-discrimination clause triggered case in which a company proposed to establish a coal mine on criticism from some of the members, who had objected to it, Cabin Creek. Objected to by the US and Canadian stating that it is, in fact, wrong to include a provision granting governments, the subject fell under the International Joint such broad rights to foreign nationals or judicial persons, Commission (IJC) according to the boundary Waters treaty. regardless of their place of residence. Main purpose of the The IJC, in its recommendation explicitly indicates that the Article was to regulate relations between states in an area subject in question could irreversibly make an adverse impact involving the interests of a large numbers of states, and in on the fish population. Consequently, the establishment of a practical terms it will be impossible to give the same service to coal mine would be against Article IV of the said treaty. The a foreigner as to its own citizens.195 The ILC was not prepared appreciable harm used by the IJC in this case, it could be to keep the non-discrimination clause, which was severely argued, would come under the equitable and reasonable criticised.196 However, it has been incorporated in the UNGA utilisation concept, which may be politically and legally deliberation. Nonetheless, such an arrangement on non- unacceptable to upstream states because it resurrects the discrimination is working satisfactorily without any difficulties doctrine of prior appropriation.192 in Norway-Sweden and Finland.197 The reason is that they

As a result of the above, equitable utilisation emerged as a 193 Supra note 181, p. 509. fundamental principle of IWL that protects the interests of all. 194 Supra note 169, pp. 17-29. 195 II (1) YBILC (1994), p. 189. 196 Ibid. p. 27. 189 Supra note 65. 197 Supra note 151, pp. 449-463: Sweden and Finland have similar legal 190 Ibid. systems and citizens of either country can lodge judicial and 191 Ibid. pp. 88-89. administrative complain in either country in the event of trans- 192 Ibid. p. 92. boundary pollution or any adverse affects. 90 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 91 possess similar legal systems and legislation that function well and is less contentious and acceptable to all. Therefore, I have for the non-discrimination clause. Eventually, the UNCIW was selected this option rather than the contentious drainage basin adopted with the main rule being equitable and reasonable approach. The heart of the convention as evaluated earlier, is utilisation without causing any detrimental effect to other part II, general principles, Article 5 to Article 10. In Article 5 watercourse states.198 on ‘equitable and reasonable utilisation and participation’, it must be mentioned that the word ‘sustainable’ has been added 2.9.3 UNCIW, 1997 by the Sixth Committee.

The convention consists of 36 articles.199 Part I deals with the Article 6 comprises 17 elements relevant to equitable and introduction. Article 1 deals with the scope of the present reasonable utilisation and is also analysed in the next chapter. convention, Article 2 the use of terms, and Article 3 the As a matter of fact, each factor mentioned in Article 6, carries watercourse agreement. The definition of a watercourse was equal weight. However, their application could vary in each only made in 1991 as stated previously. By that definition, circumstance; but equity plays the vital role in its groundwater, lakes, streams, rivers and aquifers are determination. indispensable parts of a watercourse system. This phrase was modified by the word 'normally' in order to address the two Article 7, the obligation not to cause significant harm, as diverging views on it. The reasons given for this are: mentioned earlier is another significant rule. The ILC was confronted with a divergence of views and much of its time has "thus, for example, the fact that two different been spent on this Article; which was also changed in the sixth drainage basins were connected by a canal would committee of the UNGA.202 As evaluated earlier, the wording not make them part of a single 'watercourse' for the of 'appreciable’ harms was changed to ‘significant harm’ in the purpose of the present articles. Nor does it mean, Sixth Committee and Article 7(2) was also changed by ‘due for example, that the Danube and the Rhine form a diligence’ in order to maintain a balance between the no harm single system merely because, at certain times of and equitable utilisation principles. the year, water flows from the Danube as ground water into the Rhine via Lake Constance."200 In some instances the equitable and reasonable use may legitimately cause minor harm. If any use causes such harm, The reason to select the term watercourse is that this concept there must be negotiation in order to eliminate or abate such has long been used in international agreements, state practice harm. Even if some harm is inevitable, the question of and judicial pronouncements to refer to a river, its tributaries reparation could be invoked to address the problem. Article 7 and related canals.201 Nevertheless, basically, there is no provides: fundamental distinction between the watercourse and drainage basin concepts but the former term has been habitually used 202 Sixth committee deliberation in UN: Article 7, Paragraph 1 ‘exercise 198 Supra note 7, p. 217-18. due diligence’ changed to 'take all appropriate measures', and in article 199 Supra note 3, pp. 700-720. 5 'sustainable' was added, II (2) YBILC (1994), Report of the 200 II (2) YBILC (1994), pp 90-91. Commission to the General 'Assembly on the work of its forty Sixth 201 Ibid. p. 91. Session, 1994, pp. 103-105. 92 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 93 “1.watercourse Sates shall, in utilizing an Lanoux, etc. The principle requires cooperation on the basis of international watercourse in their territories, take all sovereign equality, territorial integrity, mutual benefits and appropriate measures to prevent the causing of good faith in order to attain optimal utilisation and adequate significant harm to other watercourse States. protection of a shared natural resource. Furthermore, this idea

has been supported by the ICJ in its ruling in New Zealand 2.where significant harm nevertheless is caused to versus France in 1974.205 Also, regarding the concept another watercourse State, the States whose uses causes such harm shall, in the absence of agreement supported in the Advisory Opinion of 8 July 1996, upon a to such use, take all appropriate measures, having request from the UNGA concerning the issue of “Legality of due regard for the provisions of article 5 and 6, in the Threat or Use of Nuclear Weapons”, the ICJ stressed that: consultation with the affected State, to eliminate or “the states have the general obligation to watch that mitigate such harm and, where appropriate, to activities undertaken within their national discuss the question of compensation.” 203 jurisdiction or in zones under their control respect the environment of other states or areas beyond Article 8 deals with “General obligation to co-operate: national control.”206. 1. Watercourses States shall co-operate on the basis of sovereign equality, territorial integrity, mutual Part IV deals with protection, preservation and management of benefit and good faith in order to attain optimal the ecosystem in Articles 20-26. Part V, Articles 27 and 28 deal utilisation and adequate protection of an with eco-system protection, harmful conditions and emergency international watercourse. situations; whereas part IV, Articles 29-33 deal with 2. In determining the manner of such co-operation, miscellaneous provisions for dispute settlement that has been watercourse States may consider the establishment severely criticised by many countries, stating that they severely encroach upon their sovereignty. 207 of joint mechanisms or commissions, as deemed

necessary by them, to facilitate co-operation on Articles 11 to 19 describe in detail the procedure of giving relevant measures and procedures in the light of information concerning planned measures and procedures experience gained through co-operation in existing regarding notification. Article 33 provides for the settlement of joint mechanisms and commissions in various disputes with the establishment of a joint water entity including regions.”204 the referral of the dispute to an impartial fact-finding commission. When ratifying, accepting, approving or acceding This Article sought to accommodate the principles put forth in principle 2 of the Stockholm conference, Article 21 of the 205 ICJ Reports (1974), p. 268. UNCED and several judgements provided by court and 206 www.icj-cij.org; also see D. Momtaz, “The United Nations and the arbitration tribunals, i.e. Trial Smelter, Corfu Channel, Lake Protection of the Environment” in M. I. Glassner (ed) The United Nations at Work, Westport, CT: Praeger, 1998, p. 62. 207 During the voting 103 states said yes, 3 (Turkey, China and Burundi) 203 II (1) YBILC (1994), pp. 167-168. against with 27 abstentions, one of the main reasons for the vote 204 Ibid. against is Article 33’s obligatory provision for dispute settlement. 94 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 95 to the present convention, or any time thereafter, states may appeared that both upstream and downstream states find declare that they recognise as compulsory, submission of strengths and weakness in the final formulation of the articles, disputes to the ICJ or an arbitration tribunal. as a result of which it can be argued that these provisions lack the status of customary rule of international law. Furthermore, Being the first instrument of universal application with an the compulsory dispute settlement provision under Article 33 integrated and holistic and framework approach, the UNCIW (10) remains a major area of criticism by a number of powerful has definitely codified many aspects of Customary International nations.211 Law, viz. equitable utilisation with the full consideration of sustainable utilisation of such resources.208 The other fact is 2.9.4 The Institute of International Law that the provisions of this convention will not affect the existing treaty regimes among and between nations. However, if the This institute has played a pivotal role in the development and state parties are willing to bring these treaties in line with this codification efforts of international law since the nineteenth convention, they can adjust it as and when they deem it century, including the codification of UNCIW. The appropriate. The regional agreements will also remain International Regulation on the Use of IWC for Purposes Other unaffected regardless of the fact that a regional economic bloc than Navigation (Declaration of Madrid), 1911, prohibits any 209 has the right to become a party of this convention. It must be state from using or allowing the use of the waters of an recognised that the convention does not affect existing treaty international stream in a way that may cause detrimental regimes and these principles are only applicable when states impacts to other states.212 Article II prohibits any establishment wish to follow them. in a stream that traverses successively the territories of two or more states, without the consent of the other states. Along the From the view of the discussion in the ILC and in the sixth same lines, Article II (5) prohibits any construction in the committee, and the voting pattern in the UNGA relating to the downstream country that could be the subject of inundation in UNCIW, there is a delicate balance and a package deal of other state territories. Those rules, however, are not legally Articles 5, 6 and 7, on which 38 states voted for, 4 states binding even though they are considered as general guidelines (China, France, Tanzania and Turkey) against, and 22 for states. As demonstrated earlier, the Helsinki Rules, 1966, abstained. From the ILC to the Sixth Committee discussions, the UNCNIW 1997, and several concepts and developments states were hugely divided, protecting their individual interests addressed by these Rules are contributions of the Institute. For downstream versus upstream. Different views were held as to example, the illegality of trans-boundary pollution and injury or which rules - ‘equitable utilisation’ or the ‘no harm rule’ should harm arising from the use of the waters in a state that affect 210 supersede the other. The voting pattern on the substantive other states is a concept inherited from the earliest works of the issues suggests that the members voting against or abstaining ILI. were equivalent to the number of states voting in favour. In order to implement these principles, states must have separate Another pertinent instrument is the Resolution of the Use of bilateral or multilateral agreements. From the voting pattern it International Non-Maritime Waters Salzburg 1961. This rule

208 Supra note 2, pp. 308. 209 II (2) YBILC (1994), commentary, pp. 95-97. 211 Ibid. 210 Press release/ UNGA/9248, 22 May 1997. 212 Supra note 57 pp. 274-275. 96 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 97 outlines state rights and duties in waters that extend from two considering all the relevant factors in each or more states territories. Article III provides: particular case.”214

“if the various States disagree upon the extent of It is an obvious endorsement of the Helsinki rules. The Inter- their rights of use, the disagreement shall be settled American Bar Association in its Tenth conference on on the basis of equity, taking into consideration the November 19, 1957 in Buenos Aires initiated work on respective needs of States, as well as any other formulating the principles on international drainage basins and circumstances relevant to any particular case” 213. adopted five principles. In its San Jose Resolution in 1967, No 1, third paragraph, states: Article IV states that any act of a state harmful to another state entitles the latter to receive adequate compensation for any loss "International waters have for America unique or damage incurred. Article V indicates the need to have prior importance to the extent that it is difficult to notice and consultation before initiating any work on imagine a social and economic development and waterways or watersheds. Such rules also stipulate that integration of the continent without an equitable negotiations should be conducted in good faith in the event of and adequate usage of such waters, in achieving such works giving rise to conflict. which the law has a substantial function"215

2.9.5 Some Other Institutions Besides this, there are several other organizations, which have also contributed to the development and codification of the The codification and development of international law are the topic. UNEP Principles on Conservation and Harmonious accumulation of institutional contributions. As far as IWL is Utilization of Natural Resources Shared by Two or More States concerned, the contribution of the ILI, ILA and ILC are 1978 is also pertinent in this area.216 The UNGA Resolution significant. There are a few other institutions that have also 3129 (XXVIIII) 1973, called for adequate international made contributions in the area. The Asian-African Legal standards to be established, for the conservation and utilisation Consultative Committee (AALCC), which has a working of natural resources common to two or more states, and the co- relationship with the ILC, has adopted a Draft Proposition on operation among those states to be enhanced by the exchange the Law of International Rivers in 1973 at its New Delhi of information and prior consultation. The principle was not conference. Article III envisaged: endorsed by the UNGA as a general principle of law but it simply acknowledged it. The principle forms a part of soft law. "1. Each basin state is entitled, within its territory, to reasonable and equitable shares in the beneficial Apart from this, the Economic Commission for Europe (ECE) use of the waters of an international drainage basin. has adopted a regional Convention on the Protection and Use of 2.What is a reasonable and equitable share is to be

determined in the interested basin state by 214 AALCC, Report of the Fourteenth Session held in New Delhi, 10-18 January (1973), pp. 7-14; also see supra note 57, p. 202. In Article III(3) eleven factors are recommended. 215 Supra note 57, pp 317-320. 213 Ibid. p. 280. 216 Supra note 66, pp 21-26. 98 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 99 Trans-boundary Watercourses and Lakes in 1992, which In this first universal deliberation on water, the Member States provides for equitable utilisation, good neighbourly relations identified problems with the resolution of such issues and it and cooperation between the riparian states.217 The convention was suggested that all problems relating to water should be contains 29 articles and 4 annexes. It is the first of its kind that resolved under the UN Charter. Every problem requires a is consistent with the 1997 UN convention in several respects. peaceful, and fair solution as suggested by the Charter. Particular attention will be given to Article 21 of the United 2.10 Some UN Resolutions Nations Conference on Human and Environment (UNCCHE), which recommend a state's full right to use such resources 220 UNGA Resolution 3281 (XXIX) on the Charter of Economic without disturbing others by such use. Rights and Duties of States was adopted in 12 December 1974. Article 3 says: Subsequent to the First Water Conference, the second UN World Water Conference, which was held in Dublin in 1980, “In the exploitation of natural resources shared by two largely failed to yield any of the expected outcomes, as argued 221 or more countries, each State must cooperate on the by Biswas. His criticism was based on the discontinuation of basis of a system of information and prior any further conferences with no significant outcome and no consultations in order to achieve optimum use of such major result achieved. However, he has not clearly indicated resources without causing damage to the legitimate what result he expected. Perhaps, he was demanding a concrete interest of others.” 218 result in resolving the numerous issues in the area and also the creation of an adequately funded and fully functioning water The significance of this resolution is obvious. It encourages a institution, which may be a good argument. cooperative attitude without which the objective of gaining maximum benefits from an IWC is not realisable, and that is The Second World Water Forum held in the Netherlands on 20- the foremost requirement for the harnessing of such resources. 22 March, 2000, highlighted the scarcity of water, emerging conflicts on its use, sustainable and equitable use of it and so 222 The Water Conference, Mar del Plata 1977, was the first effort forth. In its Ministerial Declaration no 1, the threat caused by of the international community to focus attention as the lack of a secure supply of sufficient freshwater, difficulties deteriorating and scarce resources. The conference declared with its use, threat to lives due to its insufficiency and lack of that: quality were discussed. In its second paragraph it spoke about "in relation to the use, management and development of shared water resources, national 220 Ibid, pp. 164-170; also see E. Fano," Brief Comments on the United policies should take into consideration the rights of Nations Water Conference" in A. E. Utton and L. Teclaff (eds), Water each State sharing the resources to equitably utilize in the Developing World, Colorado: Westview Press, 1978, pp. 267- 269. such resources as the means to promote bonds of 219 221 A.K. Biswas, "Water for Sustainable Development of South and solidarity and co-operation." southeast Asia in the Twenty First Century " in A. K. Biswas & T. Hashimoto (eds), Asian International Waters: From Ganges to 217 Ibid. p. 345 Brahmaputra to Mekong, Oxford: Oxford University, 1996, p. 23. 218 Supra note 57, p. 162. 222 http://www.worldwaterforum.org/index2.html ; also see 219 Ibid, p. 166. www.worldbank.org/html/extdr/extme/jdwsp03220htm. 100 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 101 the effort that had been made to protect those resources: “these As evaluated earlier, state practices, treaties, writings of the threats are not new - nor are the attempts to address them.” publicists, and case law have greatly helped in development Discussion and actions started in Mer del Plata in 1977, and codification. Some non-disputed arrangements now continued in Dublin and were consolidated in Rio in 1992. The constitute part of customary international law. Equitable Third Water Conference, held in Japan 16-23 March, 2003, utilisation has become the basic rule, which is supported by highlighted the significance of the issues and asked the IC to state practice and opnio juris. The UN Watercourses provide an extra annual amount of $ 50 to 100 billion to Convention of 1997 and the ICJ’s judgement in Govcikovo- address these problems.223 Nagymaros case in 1997226 are notable examples of the rule in action. 2.11 Conclusions However, it is not always the case. As stated above, in the Nile Water issues always connect and divide states. The codification situation, Egypt has been utilising almost the entire flow of the of IWL has been an exercise of the world community over the river by refusing to share the flow with her upstream state past decade. As demonstrated earlier, conflicts and disputes are Ethiopia, stating the ‘no harm’ principle. It is, therefore, not found only in the international arena but also within federal apparent that there is a breach of the equitable utilisation structures. In India, there are serious issues between the states principle that has resulted in an unreasonable and inequitable of Karnataka and Tamil Nadu over the allocation of Cauvery situation for Ethiopia. river waters, whilst in Pakistan the conflict between the provinces of Sind and Punjab is so serious that each province is Moreover, there is some confusion about the exact meaning of accusing the other of stealing and wasting its share of water.224 the term of 'equitable', regardless of the fact that it is being At the same time, it is a fact that until the recent past, there was advocated and supported in numerous spheres of IWC’s. States not a single rule that could be applicable holistically and themselves must resolve the problem by the application of universally. As demonstrated above, state practices, treaty equity based on the particular circumstances and needs of a regimes and settlements of disputes have suggested several particular watercourse. Nevertheless, there are several issues different resolutions. This has added further complication. In that need to be sorted out, particularly the problems of the weak fact, due to the stress on scarce freshwater resources, it has and poor countries that lack the huge capital needed for been predicted that the problem of water scarcity will lead to investment, technology and skilled manpower. They require more conflicts in the days to come and may cause world war.225 even greater co-operation from multilateral agencies and western governments. Donors have sought clearance from the other watercourse states but at the same time also raised objections to such projects.227 Eventually, such vulnerable 223 www.worldwaterforum.org/ nations are barred from developing their own resources due to 224 Supra note 41. these loopholes, which need to be amended before such 225 Supra note 110, p. 12. The centre for strategic and international studies predicted that water, not oil, will become the dominant subject of bottlenecks can be removed. Again, the approach of equity and conflict for the Middle East by the year 2000. Also, see such prediction by James Wolfensohn, President of the World Bank, in his speech to 226 37 ILM (1998), pp. 162-202. the second world water forum in the Hague, in www.worldbank.org/ 227 R. Krishana, “The Evolution and Context of the Bank Policy for and www.worldwaterforum.org/index2html. Projects on International Waterways” in supra note 130, p. 31 -43.

102 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 103 the criteria that have been developed in international law to give special consideration to the weak, vulnerable, geographically handicapped and less developed states, such as trade concessions, Law of the Sea Convention's Article 148, should be developed by the international community and the United Nations.228

The UNCIW, adopted by majority voting and not by unanimity, the pattern of the voting and the concern of the state parties, reflected the complication over the matter.229 After application, the rules definitely reveal the shortcomings or deficiencies inherent in them.

In conclusion, it can be said that the past experience in the development, sharing and allocation of IWC’s has helped several rules, norms and criteria to evolve. By the application of it, further problems could be sorted out in the distant future as well. However, every arrangement of settlement must be done by states invoking a cooperative attitude and strong political will to comply with the Charter of the United Nations.

Chapter Three will critically evaluate the origin, development and concept of equity, the role of equitable utilisation in the area of international watercourses resources and of shared natural resources, the jurisprudence developed by the ICJ and its far-reaching implications for the area.

•

228 21 ILM (1982), p. 1295. 229 Supra note 1, pp. 18-23. Equitable Utilisation / 103 104 / International Watercourses Law and Its Application in South Asia

serve their own interest at the price of other basin states. It is a notorious principle that is heavily objected to by the Chapter- Three international community. It is also known as the Harmon

Doctrine, based on the legal opinion provided by the then US Equitable Utilisation Attorney General to the Secretary of State in a dispute over the sharing of waters of the Rio-Grande River between the USA 3.1 Principles of International Water Law and Mexico in 1896. Neither the international community, nor the United States itself, ever accepted this theory. Smith has

termed it as radically unsound and as a ground for legality From the preceding chapter, we can glean at least four unaccepted.3 However, its mention has been made by some principles for resolving conflicts over international states; India in 1948, temporarily interrupting the flow of the watercourses:1 absolute territorial sovereignty, territorial river from India to Pakistan;4 China has asserted it even as integrity, prior appropriation and equitable utilisation, it has recently as 1997 during discussions on the UNCIW at the been widely held that the equitable utilisation is the best UNGA,5 Austria made similar reference to the principle.6 principle.2 However, it has never been a principle recognised by most

nations but rather heavily deplored for its basic foundation.7 3.1.1 Absolute Territorial Sovereignty

3.1.2 Territorial Integrity The substance of this principle is that a state is fully free to use the waters flowing through its territory as it pleases and it need not pay heed to any restriction or prohibition on such use. This Despite the semantic similarities with the title of the first is the traditional view expressed by upstream states in order to principle, this is just the opposite of the earlier rule. It pledges the right of a downstream state on the ground that upstream 1 J. Lipper, "Equitable Utilisation" in A. H. Garretson, R. D. Hayton & states cannot diminish, or change the flow of an IWC. This C. J. Omstead (eds), The Law of the International Drainage Basins, principle was invoked by downstream states such as Argentina, New York: Oceana Pub., 1967, pp.16-26; see O. McIntyre, "The Law Relating to the Use of Shared International Water Resources: 4 Tools Egypt, Spain, Bangladesh, Syria, and Iraq against their for Equity" (1998) in 6 WI, Chancery Law Pub., pp. 23-24; also see M. Fitzmaurice, "Water Management in the 21st Century" in A. Anghie 3 H. A. Smith, The Economic Uses of Waters, London: P.K. King and and G. Strurgess (eds), A Legal Vision of the 21st Century: Essays in Son, 1931, p. 8. Honour of Judge Christopher Weeramantry, the Hague: Kluwer Law, 4 J. Lammers, Pollution in International Watercourses, the Hague: 1998, pp. 427-429. Martinus Nijhoff, 1984, pp. 318-319. 2 B. R. Chauhan, Settlement of International and Inter-State Water 5 Press Release, including UNGA vote on the UNCIW 21 May 1997: Disputes in India, Bombay: Indian Law Institute, 1992, pp. 21-40. www.un.org/law/ilc/texts/status.htm Gao Feng has said that the “state There are some scholars who hold a different view on whether there had indisputable sovereignty over a watercourse which flowed through are only four rules on the subject. Chauhan has argued that there are its territory.” seven prevailing rules, including the doctrine of riparian rights, prior 6 C. B. Bourne, “The Right to Utilize Water of International Rivers” appropriation, territorial sovereignty, natural flow, equitable (1965) in III CYBIL, p. 205. apportionment, community of interest, and the equitable utilisation 7 S. C. McCaffrey, "The Harmon Doctrine One Hundred Years Later: theory. Buried, not Praised" (1996) in 36 NRJ, p. 725. Equitable Utilisation / 105 106 / International Watercourses Law and Its Application in South Asia upstream neighbours. As we noted in the Lake Lanoux of the Indus river waters.10 IWL does not support this principle. arbitration, Spain’s objection to the French diversion was This issue will be further addressed in Chapter Four. rejected on the ground that there is no customary international law that prohibits such a diversion, though it could be 3.1.3 Prior Appropriation prohibited through a bilateral treaty.8 In substance, this rule could be called a veto power of the downstream state because it This is a bit more advanced than the two principles discussed prohibits any significant use of water by upstream states above. Prior appropriation provides that the state which first without the consent of the downstream states. The no harm rule utilises the waters of an international river acquires the legal right to continue to receive that quality and quantity of water in supports this doctrine. future and cannot be deprived of it without its consent. In

practice, however, the more developed and resourceful In the context of Indo-Nepal water relations, India objected to countries have had their water appropriation before and often several Nepalese irrigation and hydropower projects, i.e., the are therefore in a more beneficial position than the weak or Sikta, West Rapti (Bhalubang-Deokhuri), Kankai, Babai, and poor countries. Therefore, it could be argued that this theory Tamur hydropower projects, stating that these works would favours more developed states at the expense of weaker states 9 violate the principle of territorial integrity. At the end of and is not based on a fair and equitable foundation. There are several studies carried out, donors like the World Bank, ADB several examples of this. and Saudi Fund declined to finance those projects on the ground of downstream objections. It is worthwhile to mention In the Nile case, downstream Egypt has always laid claim to its the opposite stand taken by India whilst it was negotiating with historic right over the waters of the river and threatened the poorer and weaker upstream state, Ethiopia, which is not able its downstream neighbour, Pakistan, in the Ganges case and 11 also with Pakistan during the 1948 dispute over the allocation to use waters that originate and flow from its territory. It is an obvious but notorious disparity against international law norms. Such conduct on the part of a downstream state does not provide equity, and a fair share of waters for such vulnerable 8 R. Benhard (ed), Encyclopaedia of Public International Law: states like Ethiopia. In this case, Egypt warned that she would Decisions of International Courts and Tribunals and International Arbitration, the Hague: North-Holland Comp., 1981, pp. 166-167. declare war if the waters were utilised by upstream states and 9 B. G. Verghese, Waters of Hope, New Delhi: Oxford & IBH Pub., also offered the transfer of some water to Israel if she would be 1990, p. 342. The Rapti-Bhalubhang Project, in which Canadian ready to resolve the Palestine problems.12After the conclusion finance was committed, collapsed as a result of Indian objections. of the Camp David Treaty between Egypt and Israel, President Initially they had agreed with the project and later changed their stand. Sadat talking to the Israeli press, had unveiled a plan for a The Babai irrigation project was also cancelled because of the Indian objections which the Kuwait Fund had agreed to finance. Also see H. pipeline to bring the Nile water to the recently returned Sinai. M. Shrestha and L. M. Singh, "The Ganges-Brahmaputra System: A Nepalese Perspective in the Context of Regional Co-operation" in B. 10 India has now taken opposite stand while dealing with Nepal. G. Verghese, & T. Hashimoto (eds), Asian International Waters: From 11 N. Kliot, Water Resources and Conflict in the Middle East, London: Ganges-Brahmputra to Mekong, Oxford: Oxford University, 1996, p. Routledge, 1994, p. 68. 81-94. 12 Ibid. Equitable Utilisation / 107 108 / International Watercourses Law and Its Application in South Asia

Later, in negotiation with the Israeli PM, he put forth this appropriation or existing use, one of the relevant factors to be proposal officially in 1981.13 It was reported that Israel refused taken into account under Article 6 of the UNCIW. the proposal.14 In practice, this rule is most often inimical to the interest of When Ethiopia, sharply criticised the Egyptian proposal stating upstream states because ancient civilisations and utilisation of that it would be a misuse of its share of the Nile, President water took place along the banks of rivers in downstream states, Sadat warned Ethiopia in stern words: for example in ancient Egypt, India, and China. Thus, they "we do not need permission from Ethiopia or the benefit from this concept. Conversely, the weaker upstream Soviet Union to divert our Nile water. If Ethiopia states, like Nepal and Ethiopia, now have to contend with takes any action to block the Nile waters, there will massive prior appropriation by other downstream neighbours, be no alternative for us but to use force."15 which hinders them from utilising such common waters. In these circumstances, when a poor and vulnerable country needs The responsible leaders of the Middle East speak about co-operation (in finance, technology and skills), it finds itself in security, which means water security. President Sadat had once the unenviable position of not being able to develop any water expressed the view that “the only matter that could take Egypt projects on account of the objections raised by asymmetrical to war is water.”16 Above all, these claims were clearly based neighbours. It is, therefore, an obvious injustice and against the on her historic rights over the Nile waters or ‘prior spirit of the Charter of the UN and of Articles 5, 6, & 7 of the appropriation’. On the contrary in the parallel situation over the UNCIW.18 Tigris and Euphrates, water supply is denied by Turkey to Iraq and Iraq’s historic and ancient right over these waters is not 3.1.4 Equitable Utilisation safeguarded.17 The situations in the Jordan, Ganges, Brahmaputra and Indus are quite different. However, most of This is the most widely recognised and practiced principle in the above examples are explicitly linked with the idea of prior the resolution of water related problems. It is based on equity, fairness and norms of distributive justice in which the interests of every contestant country are taken into consideration. 13 A. T. Wolf, Hydro Politics Along the Jordan River: Scarce Water and Equitable utilisation is central to this book and the rest of this Its Impact on the Arab-Israeli Conflict, Tokyo: United Nations chapter is devoted to its study. IWL recognises equitable University, 1995, p. 57. 14 A. T. Wolf, "Hydro-Political History of the Nile, Jordan and Euphrates utilisation as a set of well-established rules, which are also River Basins" in A. K. Biswas (ed), International Waters of the Middle East: From Euphrates-Tigris to Nile, Oxford: Oxford University, 18 There are numerous instances of projects being cancelled due to the 1994, p. 30; also see ibid. objection of riparian states on such grounds. In the Nile project western 15 Ibid. p. 31. funding was cancelled as it was in Ganges, Kanaki, Tamur in Nepal 16 D. A. Caponera, "Legal Aspects of Transboundary River Basins in the and several other parts of the world. At the same time rich and Middle East: The Al Asi (Orontes), The Jordan and the Nile" (1993) in resourceful states were able to develop any project against the spirit of 33 NRJ, pp 631-632. IWL For example the Farakka, Chicago diversion, Three Gorges and 17 Supra note 11, pp. 158-172; see A. Soffer, Rivers of Fire: the Conflict the Nile’s case explicitly ignore the right of the nine upper riparian over Water in the Middle East, Lanham, Maryland: Rowman & states for which international law and the international community Littlefield, 1999, pp. 88-112. have remained mere spectators. Equitable Utilisation / 109 110 / International Watercourses Law and Its Application in South Asia widely recognised as rules of customary international law and (i) the avoidance of unnecessary waste in the utilization supported by state practice, judicial prouncement and the of waters of the basin; writing of publicists. (j) the practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts 3.2 The Rule of Equitable Utilisation in IWL among uses; and (k) the degree to which the needs of a basin State may be In order to share and allocate waters in an IWC, Article IV of satisfied, without causing substantial injury to a co- the Helsinki Rules on the basin State. Uses of Waters of International Rivers provides: 3. The weight to be given to each factor is to be determined “Each basin State is entitled, within its territory, to a by its importance in comparison with that of other relevant reasonable and equitable share in the beneficial uses of factors. In determining what is the reasonable and equitable the waters of an international drainage basin”. 19 share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.” This article is supplemented by Article V,20 which provides the factors in determining what uses are reasonable and equitable: Thus, from the assessment of Articles IV and V, it can be “1. What is a reasonable and equitable share within the argued that there is no single definition of what equitable meaning of article IV is to be determined in the light of all means. Its assessment, however, is to be based on a number of the relevant factors in each particular case. factors. Therefore, the application of equitable utilisation could 2. Relevant factors to consider include, but are not limited to: be different for different drainage basins considering the (a) the geography of the basin, including in particular the particular circumstances prevailing in each basin. extent of the drainage area in the territory of each basin state; Regarding Article 5 on equitable and reasonable utilization and (b) the hydrology of the basin, including in particular the participation, the UNCIW also holds similar attitudes, which contribution of water by each basin state; stipulate that: 21 (c) the climate affecting the basin; “1. Watercourse States shall in their respective territories (d) the past utilization of the waters of the basin, including utilize an international watercourse in an equitable and in particular existing utilization; reasonable manner. In particular, an international (e) the economic and social needs of each basin state; watercourse shall be used and developed by the (f) the population dependent on the waters of the basin in watercourse State with a view to attaining optimal and each basin State; sustainable utilization thereof and benefits therefrom, (g) the comparative costs of alternative means of taking into account the interests of the watercourse States satisfying the economic and social needs of each basin concerned, consistent with adequate protection of the State; watercourse. (h) the availability of other resources; 2. Watercourse States shall participate in the use, development and protection of an international watercourse 19 ILA’s Helsinki Rules (1966), pp. 486-488. 20 Ibid. 21 36 ILM (1997), pp. 700-720. Equitable Utilisation / 111 112 / International Watercourses Law and Its Application in South Asia

in an equitable and reasonable manner. Such participation 3. The weight to be given to each factor is to be determined includes both the right to utilize the watercourse and the by its importance in comparison with that of other relevant duty to cooperate in the protection and development factors. In determining what is a reasonable and equitable thereof, as provided in the present Convention.” use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.” Each watercourse has unique features that demand separate solutions. However, the justifiable principle to address each Again, the role of equity is relevant in fixing the conditions of circumstance is that of reasonable and equitable utilisation. It what is equitable and reasonable use of such waters. In embraces equity, rationality, fairness, justice, equality and other summary, these rules are meant to resolve any conflict or important elements of sustainability. In determining whether a dispute between the contestant states in a fair manner.23 These use is equitable or not, factors relevant to equitable and rules clearly set out the conditions and prerequisites that need reasonable utilization as envisaged in Article 6 of the UNCIW to be taken into consideration when determining whether a use should be considered: 22 is equitable or not. “1. Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 The use of an IWC should be undertaken in such a way that it requires taking into account all the relevant factors and will not prejudice or be harmful to any other watercourse states. circumstances, including: The obligation not to cause any harm to the other watercourse (a) Geographic, hydrographic, hydrological, climatic, state is an inseparable part of equitable and reasonable ecological and other factors of a natural character; utilisation. The other aspect of equitable utilisation is to share (b) The social and economic needs of the watercourse the benefits and costs of any watercourse project developed by States concerned; a watercourse state. This implies that if work done by an (c) The population dependent on the watercourses in each upstream state yields any benefits for the downstream state, it watercourse State; must be shared on the basis of a cost benefit-analysis; (d) The effects of the use or uses of the watercourse in one otherwise, it could be a case of unjust enrichment.24 watercourse State on other watercourse State; Furthermore, equitable utilisation requires a continuous process (e) Existing and potential uses of the watercourse; of giving information, negotiation and cooperation among the (f) Conservation, protection, development and economy riparian states for the beneficial use of a shared watercourse.25 of use of the water resources of the watercourse and The rule of equitable utilisation was predominantly developed the costs of measures taken to that effect; and enunciated for the division, allocation and sharing of (g) The availability of alternatives, of comparable value, marine resources and IWC’s among contestant states. Equitable to a particular planned or existing use. utilisation has emerged as a rule of customary international law 2. In the application of article 5 or paragraph 1 of this article, and is the cardinal rule in the area of delimitation of the watercourse states concerned shall, when the need arises,

enter into consultations in a spirit of cooperation. 23 Supra note 1, pp. 16-25. 24 Factory of Charzow case (1928), PCIJ Reports, p. 47. 25 Supra note 4, p. 548; S. C. McCaffrey, The Law of International 22 Ibid. Watercourses, Oxford: Oxford University, 2001, p. 340. Equitable Utilisation / 113 114 / International Watercourses Law and Its Application in South Asia continental shelf, allocation of marine resources and IWC rules is the result of largely accepted state practices, scholarly issues. However, the political use of equity and the use of writing and case law. That is to say, it is a reflection of the equitable utilisation in legal spheres are different. The political existing customary rules of international law.28 use of these words is always contentious and disputed, whilst the legal sphere recognises it as a customary rule of There is a set of rules that provide for the rights, duties and international law. For example, the use of equity in South- responsibilities of watercourse states in matters relating to the North relations, particularly in respect of international sharing of resources. The basic rule is contained within Article cooperation, entails providing resources and technologies, an IV of the Helsinki rules.29 The formulation of those rules was issue that is always challenged by the North.26 The political undertaken as a collection of general principles drawn from concept of equity has been used to get unconditional financial regional treaties, judicial pronouncements and academic resources from the North, whilst the legal use of equity is the writings on the subject. The ILC has been involved in the application of the Articles 5 and 6 of the UNCIW and the codification and progressive development of international law principle enunciated by the ICJ in numerous cases as evaluated since 1970. After sustained efforts, the ILC submitted its draft in this research. The legal concept of equity is well defined and of rules to the UNGA (Sixth Committee). Subsequently, with sufficiently certain for implementation. With regard to the necessary debate, modification and negotiation at the UN, political concept of equity, the North has always maintained adopted the UNCIW on May 20, 1997. The convention is more that it is not legally or even morally bound to help the South, advanced and refined than the Helsinki rules. It set out the basic whilst the South has taken the reverse position on these issues. rule(s) in its Articles 5, 6 & 7.30 Hence it is fair to say that the political concept of equity is vague and limited, perhaps to the point of being a slogan, and The provisions made in the UNCIW describe the factors that without compromise between two groups is not achievable. To need to be taken into account. It is important to define the illustrate this point, CERDS and NIEO are always disputed. relevant factors to be considered that will significantly help Thus the political use of equity remained a disputed whilst its resolve the dispute during negotiations and other diplomatic legal use has been unanimously recognised by both camps. efforts to avert and mitigate future conflicts. The socio- economic and demographic aspects of the populations, and the After the prolonged and sustained effort of the ILA in its existing and potential uses are given equal weight in order to Helsinki Resolution 1966, the rules of equitable utilisation as determine whether or not a particular use is equitable. It is determinants of the allocation and sharing of water resources useful to mention here that in the context of rejection of the among the riparian countries were adopted, which has become population factor (huge population was a reason to demand the substantive law ever since.27 However, they are an early priority) in determining equitable utilisation by the ICJ in its development made by non-governmental organisations. At the decision of the delimitation of a continental shelf, it was same time, it should be borne in mind that the outcome of the thought essential to define those elements clearly, as mentioned

26 R. P. Anand, Confrontation or Cooperation? International Law and 28 B. R. Chauhan, Settlement of Disputes in International Drainage the Developing Countries, Dordrecht: Martinus Nijhoff, 1987, pp. 111- Basins, Berlin: E. Schmit, 1981, p. 457; also see supra note 4, p. 548. 120. 29 ILA report of the fifty second conference, Helsinki (1966), p. 486. 27 ILA report of the fifty second conference (1966), pp. 478-532. 30 36 ILM (1997), p. 700. Equitable Utilisation / 115 116 / International Watercourses Law and Its Application in South Asia in Article 6 of the UNCIW.31 In order to give emphasis to the The equitable utilisation rule reciprocates with the no harm rule population factor it was essential to put it expressly to avoid in Article 7, the obligation not to cause significant harm and to any confusion created by the above judgment. In the case of the take appropriate measures to prevent significant harm to the allocation of resources between two developing countries, the other watercourses states: less developed country, for example as between India and Nepal, Nepal, should get priority according to the rule of “2 where significant harm is nevertheless caused to equity. This is by analogy with the tradition of developed other watercourses States, the States whose use countries providing finance to the development effort of causes such harm shall, in the absence of agreement developing countries, to less developed countries at different to such use, take all appropriate measures, having stages of development. due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or It can be argued that developing and vulnerable nations could mitigate such harm and, where appropriate, to benefit from socio-economic, and population factors stipulated discuss the question of compensation."35 in Article 6 of the UNCIW, whilst sharing and allocating the benefits from common water resources.32 The next significant Article 8 prescribes the general obligation to cooperate. development is the interpretation of equitable utilisation in the Similarly, Articles 20 and 21 oblige states to prevent, reduce context of the Gavcikovo-Nagymoros case by the ICJ, which and control pollution. Non-compliance with those provisions clearly recognised equitable utilisation as a basic rule in could be alleged as a breach of Articles 5 and 6, implying international law that gives impetus to Articles 5 and 6 of the 36 inequitable use of water resources. UNCIW.33 In this case, the court held the view that according to the treaty of 1977, Hungary had agreed to share the benefits In practice, however, there have been very bitter experiences of from the Danube River. Non-implementation of the treaty, 37 however, did not mean that it had forfeited its right over the non-co-operation, which have led to a situation of war. The reasonable and equitable sharing of the benefits from there Arab decision to build an all-Arab diversion of the Jordan on.34 headwaters to preclude the Israel National Water Carrier ended three years later when Israeli tank and air strikes halted 31 Judge Weermantry's opinion in the Maritime Delimitation in the Area between Greenland and Jan Mayen case (Den.v.Nor.) ICJ Reports (1993), p. 268: “no general proposition can be laid down that the 35 UNCIW: Article 7(2). population factor is in all cases irrelevant.” 36 Ibid. Article 20/21. 32 X. Fuentes, “Sustainable and Equitable Utilisation of International 37 Supra note 13 p. 173; also see supra note 17, pp. 639-641: During the Watercourses” (1998) in 69 BYBIL, p. 119; also see principle 6 of the 1948 war, the Rutenberg Electricity generating plant was destroyed by Rio Declaration proclaiming that the special situation and needs of Israel to avoid exclusive control of the Jordan and Yarmuk waters by developing and those most environmental vulnerable, shall be given Arabs. Arab states in 1964, had taken a steps to build dams in order to special priority. utilise water from the Wazzani, Hasbani and Banyas rivers, for 33 In the Gavcikovo-Nagymaros case interpretation of equitable utilisation irrigation in Lebanon, Syria and Jordan, after conveying water to the has been construed as a skeleton rule of shared natural resources Jordan valley through the East Ghor canal. Israel considered this is an between the states, in 37 ILM (1998), para. 85, p. 191. aggressive action that threatened its water resources and destroyed its 34 Ibid. p.190. work site in an attack. Equitable Utilisation / 117 118 / International Watercourses Law and Its Application in South Asia construction on the diversion. It was in June 1967 that the six- Continental Shelf Cases 196940 and the Fisheries Jurisdiction 41 day war changed the regional riparian positioning: by annexing Case 1974. In both cases, the former was concerned with the the Golan Heights of Syria, Israel acquired two of the three delimitation of the Continental Shelf and the latter with the Jordanian river headwaters and the recharge zone for mountain apportionment of shared fisheries. In these cases, the court held that the parties were under the duty not to act unilaterally but to aquifers that currently supply about 40% of Israel’s fresh water negotiate in good faith in an attempt to reach an equitable supply. settlement of those issues in dispute.

3.3 Procedural Law 3.3.1 The Duty to Consult and Negotiate

In order to attain the notion of equitable utilisation of an IWC, Bourne has observed that similar to other disputes in agreements are generally regarded as the best means of international law, international drainage basin disputes are to be avoiding disputes between co-basin states. Thus, states are settled in one of three ways: required to consult and negotiate about the utilisation in "by the agreement of the parties, reached after question. If there were any adverse effects on the other riparian, consultations and negotiations and perhaps aided by the mutual consultation and discussion are required so that any mediation and conciliation of a third party; by harm is mitigated, averted or even compensated for through submission to third party determination; by the use of concluding an agreement to this effect. The Helsinki Rules in force” as ensured under chapter VII of the UN Articles XXIX to XXXVII provide such a procedure, i.e., Charter.42 mediation, consultation, negotiation, the use of joint agencies and good offices and, ultimately, arbitration as a means of 38 Numerous instruments have been adopted to consult and preventing and settling the disputes. negotiate in case of disputes in the execution of any project, e.g., the Declaration of the Seventh Inter-American Conference These procedural rules are incorporated in Article 4 of the held in Montevideo in 1933, the resolution adopted by the Convention relating to the Development of Hydraulic Power Inter-American Bar Association at Buenos Aires in 1957, affecting more than one State and Protocol of the Signature - 39 Article 6 of the Salzburg resolution in 1961 of the Institute of Geneva 1923. Ever since, this has always been asserted in International law, and the document of the Committee on major publications, treaty regimes and instruments. Besides this Electric Power of the Economic Commission of Europe in provision, from the perspective of the ICJ, it has been firmly 1954.43 The Lake Lanoux Tribunal, in its decision in a case asserted in numerous judgements, e.g., the North Sea

40 ICJ Reports 3, (1969) pp. 45-52. 38 Chapter Six, Articles 26-37 of the Helsinki Rules stipulates procedures 41 ICJ Reports 3, (1974) pp. 1-70. for the settlement of disputes. 42 C. B. Bourne, “Procedure in the Development of International 39 "If a contracting state desires to carry out operations for the Drainage Basins: the Duty to Consult and to Negotiate" (1972) in X development of hydraulic power which might cause serious prejudice CYBIL, p. 212; also see Bourne, "Mediation, Conciliation and to any other contracting state, the states concerned shall enter into Adjudication in the Settlement of International Drainage Basin negotiations with a view to the conclusion of agreement which will Disputes" (1971) in X CYBIL, pp. 114-158. allow such operation to be executed." 43 Ibid. Equitable Utilisation / 119 120 / International Watercourses Law and Its Application in South Asia between France and Spain held a similar view (already Tigris for 27 days in order to fill up the Ataturk Reservoir, discussed above). However, it rejected Spain’s contention that which escalated the tension with further downstream countries, under customary international law, France is compelled not to Syria and Iraq in 1990. However, a trilateral meeting held later initiate any work on the disputed watercourse until it has in Ankara was able to sort out the problem.50 received the consent from Spain.44 The ICJ has explicitly Apart from these exceptional instances, watercourse states are supported the view in numerous cases that states are under the usually willing to try to settle their disputes through obligation to consult and negotiate in the event of any conflict consultation and negotiation. State practices suggest this whatsoever in undertaking any project on an IWC.45 notion.51 The UNCIW stipulates in its Article 8, the general There are some extreme instances, however, where the duty to obligation to cooperate; Article 9, the regular exchange of data consult has been explicitly ignored or knowingly violated. For and information; and, Article 10, the relationship between instance, the Jordan River Diversion scheme of 1953 different kinds of uses. In the event of conflict on the uses of an unilaterally proposed by the Arabs and aiming to harm IWC, it shall be resolved with reference to Articles 5 to 7, with provoked a war in 1967, with Israel military damaging the special regard to the requirement of vital human needs. Part III Arabs diversion work.46 The Chicago diversion that involved on planned measures, from Articles 11 to 19, explicitly asserts the transfer of waters from the Great Lake Basin to the the procedural underpinnings of negotiation, exchange of data Mississippi River basin by the USA in Chicago caused and statistics. The aim of those procedural rules are to inform significant harm to Canada.47 The Farakka Barrage unilaterally about the proposed project in detail, notify, and respond to the constructed by India in 1961,48caused much harm to East possible effect of such use, the time being fixed as six months Pakistan. Besides, which India's temporary interruption of the for completing the notification and making objections (if any), Indus waters to Pakistan was also against those laws.49 Turkey and replying to notification. The consequence of not responding temporarily interrupted the entire flow of the Euphrates and to notification is that the state in default cannot raise objections to the proposed scheme. The process of consultation and negotiation concerning planned measures and urgent 44 Supra note 8, pp. 166-167. 45 North Sea Continental Shelf Cases (1969), Fisheries Jurisdiction implementation of planned measures is also dealt with. The (1974) and Gavcikovo-Nagymaros case (1997). core of these procedural underpinnings is to encourage the 46 Supra note 13, p. 57; also see supra note 11, p. 68. transparency of a proposed project and to ensure that it is for 47 Supra note 6 p. 221; also see P. K. Wouters, "Allocation of the Non- maximising the benefits with no significant adverse effects to Navigational use of International Watercourses: Efforts at Codification and the Experience of Canada and the United States" (1992) in XXX CYBIL, pp. 60-63: This diversion has remained a bitter experience for 50 J. Kollars, "Problems of International River Management: The Case of the the two nations. Euphrates” A. K. Biswas (ed), International Waters of the Middle East From 48 Supra note 9, p. 379, also see C. K Sharma, Water and Energy the Euphrates Tigris to Nile, Oxford: Oxford University, 1994, pp. 48-49: GAP Resources of the Himalayan Block, Kathmandu: S. Sharma, 1983, p. (Turkish acronym), Turkey's South Anatolia Development Project, which incorporates construction of 21 dams and 19 hydropower projects. One million 278; also see B. Crow, A. Lindquist & D. Wilson, Sharing the Ganges, hectares of land are scheduled to be irrigated with water from the Euphrates The Politics and Technology of River Development, New Delhi: Saga and 625,000 hectares from the Tigris river waters, a total of 7500 MW installed Pub., 1995, p. 66. capacity of hydroelectricity with an average annual production of 2.6 billion 49 Y. Claude Acceriez, “The Legal Regime of the Indus” in R. Zacklin & kwh. This in turn represents 19% of the 8.5 million ha of the economically L. Caflisch (eds), The Legal Regime of International Rives and Lakes, irrigable land in Turkey and 20.5% of the country's hydropower. Dordrecht: Martinus Nijhoff Pub., 1981, pp. 396-397. 51 Ibid. Equitable Utilisation / 121 122 / International Watercourses Law and Its Application in South Asia the other watercourse states. Other elements include conduct themselves that the negotiations are cooperation between watercourse states in the event of any meaningful, which will not be the case when either of injury, the obligation to mitigate, avert or eliminate such injury them insists upon its own position without or, alternatively, the payment of reparation in case of injury contemplating any modifications of it…"57 inflicted. Excluding some exceptional instances, co-basin or watercourse states are usually willing to try to settle their water The principle of good faith requires states subject to this duty to disputes by consultation and negotiation.52 continue consultation and negotiation until they reach an agreement. The PCIJ in its advisory opinion of October 18, 3.3.2 Discharge of Duty 1931 concerning the Railway Traffic case between Poland and Lithuania stated: The basic element of the Law of Treaties is to ensure that the "… an obligation to negotiate does not imply an parties will implement the provisions of a treaty in good faith.53 obligation to reach an agreement, nor in particular Judge Lauterpacht adopted the good faith concept in the does it imply that Lithuania, by undertaking to Norwegian Loan Case, where he propounded: “unquestionably, negotiate, has assumed an agreement, and is in the obligation to act in accordance with good faith, being a consequence obliged to conclude the … general principle of law, is also part of international law.” 54 agreements."58 Similarly, in Interhandel he spoke of "the abiding duty of every state is to act in good faith."55 In the North Sea Continental Later, in a case where the same approach was taken by the ICJ, Shelf judgement the ICJ accepted this view, it was based on the in its advisory opinion on The Status of South-West Africa, the equitable principle for delimiting the Continental Shelf between court denied that a state which has assumed an obligation to adjacent states on “a foundation of very general precepts of make an agreement with another state was in fact under an justice and good faith.”56 It further states: obligation to reach an agreement with it. The court had further "… the parties are under an obligation to enter into made it clear that the parties must be free to accept or reject the negotiations with a view to arriving at an agreement terms of a contemplated agreement. No party should impose its and not merely to go through a formal process of terms on another party.59 negotiation; … they are under an obligation so to The ICJ in the Gavcikovo-Nagymoros case again endorsed the 60 52 Of the 253 treaties on the non-navigational use of international rivers included principle. Articles 8 & 9 of the UNCIW state the same in the volume prepared by the Secretariat at the United Nations and published provision between watercourse states. Whilst carrying out any in early 1960 at least 116 indicate that no undertaking will be carried out which make any change in the regime of a river without the consent of the other project in an IWC, Articles 11-19 have stipulated detailed country. E. Fano," Brief Comments on the United Nations Water Conference" provisions, as briefly discussed above. These provisions spell 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) 57 Ibid. p. 47. p. 685. 58 PCIJ Ser.A/ NO 42, (1931), p. 116; also see Bourne, supra note 42, pp. 54 ICJ Reports 9, (1957) p. 53. 225-226. 55 ICJ Reports 6, (1959) p. 113. 59 ICJ Reports (1950) pp. 128 &139. 56 ICJ Reports 3, (1969) pp. 46-47. 60 37 ILM, (1998), para. 78, p. 190. Equitable Utilisation / 123 124 / International Watercourses Law and Its Application in South Asia out how to discharge and dispense the requirements of these construction of the Farakka dam by means of her own resources Articles. Compliance with these Articles enhances cooperation, when foreign involvement was denied, regardless of Pakistan’s prevents conflicts and encourages the notion of equity. objection.63 Such a notorious “might is right” attitude was also exhibited in the Chicago diversion case.64 Therefore, international law imposes on a basin state the obligation to consult and negotiate in good faith with co-basin It is the argument of the author that if recourse to international states. As Bourne advocates, the international legal obligation law were taken to seek riparian clearance, the proposed imposed on watercourse states is the same: that is, not to cause undertakings mentioned above would have been judged illegal. any harm from their own work.61 The view is established by the In such circumstances, states are able to carry out such illegal UNCIW and pronouncements of courts and tribunals as work only if they are financially and technically self-reliant and evaluated earlier. international law cannot prevent them from doing so (or at least From the legal viewpoint, the UNCIW is applicable to all has not done so to date). As poor nations with their weak member states equally under all circumstances. However, in economic and power base cannot carry out such works, their practice, it is applied against those that are weak, vulnerable plight is one of victimisation through discrimination. What and poor. For instance, the construction of the Aswan dam on needs to be done is that illegal work must be stopped, whether the Nile was not legally right as per the notion of the above rule through the use of economic sanctions, trade restrictions, or any that the construction must not adversely affect other riparian suitable means as stipulated by the UN, including by Security countries. In this case, Egypt had not fulfilled its duty to Council resolution.65 If the international community were consult and negotiate. Even then, the mammoth work was willing to do so, it would lead to the realisation by all peoples undertaken by the Soviet Union when the western nations of the world that IWL has relevance and can be implemented. refused to get involved because of the dubious legality of this Otherwise, the creation of a system for encouraging the construction project.62 Even though the western countries and implementation of the legal rules and discouraging the breach UN agencies refused to get directly involved, the construction of its provisions would be the most desirable option. of the Aswan Project was carried out against interests of eight other co-riparian countries. Similarly, India also undertook the

61 C. B. Bourne, "Procedure in the Development of International Drainage Basins: Notice and Exchange of Information”(1972) in 22 63 Supra note 6, p. 221; also see supra note 48 (Ganges), p. 64-68: India UTLJ, p 205; also see R. Rosentock, "Current Development: Forty temporarily interrupted Indus waters to Pakistan in 1948, against Sixth Session of the International Law Commission- International Pakistan’s historic and consumptive right. Watercourses" (1995) in 89 AJIL, p. 392. 64 Ibid. Also see D. C. Piper, "International Law and Environment for 62 A. K. Biswas, "Indus Water Treaty: The Negotiating Process" (1992) Municipal Litigation: The Chicago Diversion Case” (1968) in 62 AJIL, in 17 WI, p. 201. He asserted that international funding agencies have p. 451. also declined to provide loans for development of international waters, 65 D. J. Harris, Cases and Materials on International Law, London: unless the countries concerned reach a mutually acceptable treaty. Sweet & Maxwell, 1998, pp. 1057-1060. Appropriate measures are Without external financial assistance, developing countries have been stipulated in chapter 7, Articles 39-51 of the UN Charter. Economic unable to construct capital intensive water development projects on blockades were imposed on Iraq and Libya; such blockades may be international rivers. appropriate to ensure compliance with these laws. Equitable Utilisation / 125 126 / International Watercourses Law and Its Application in South Asia

3.4 Origin and Development of Equity North and the South will also be evaluated in the context of the 68 demand for an equitable society in the modern era. Equity can be described as synonymous to the basic notion of Equity developed in part due to shortcomings in the common fairness and natural justice. It is also directly related to the idea law. Frank and Sughrue have argued that the development of that human behaviour is directed by common moral, ethical and equity in municipal legal systems (civil and common law) has cultural principles. Equity can also be regarded as a evolved in three stages: constructive, positive and liberal concept that helps resolve "First, the sovereign granted dispensations to conflicts and tensions through the reconciliation of conflicting subjects exposed to inordinate hardship in a specific interests. Thus, it has become a significant element of the situation. Second, precedents accumulated, political, economic and legal spheres of modern society,66 evolving into a system of equitable norms parallel reflected in democratic ideals as well as in the common and to the main body of the law and displacing the civil law systems of the world.67 system of royal dispensation. In the last stage, 69 equitable principles became a part of the law.” An attempt has been made to provide an analytical description of the development of equity in terms of national and Equity acts in this sense to provide a fair solution to disputes by international political as well as legal systems. In the legal reconciling conflicting interests where there is no clear law. To sphere, equity has played a crucial role in resolving conflicts in equity as a ‘softener’ of the common law, we can add the the sharing and allocation of water and is regarded as the best notion of distributional equity, although it is as yet only an tool to reconcile the interest of each contending party to its emerging norm, with a good deal of political content. satisfaction. The role of equity in shared natural resources and Distributional equity suggests that richer states are normally its relation to IWL will be dealt with. Finally, the ICJ's bound to distribute at least some of their resources to poorer jurisprudence on equitable utilisation shall be critically assessed states so as to ensure a more equal world. It may be useful to based on the study commensurate with state practice and its distinguish between the overlapping meanings of the term relevance i.e., for future posterity. The interpretation of inter- equity. As stated earlier, in the common law, the concept of generational (right of present and future generations) equity and equity has been used to bridge the lacunae, remove the rigidity the need of a NIEO in order to bridge the gap between the of law for fairness and to select one of the best interpretation of law for ensuring justice. But the expression ‘distributional equity’ refers more to the concept of providing a better life for the people of the developing world. The present gap in the

66 S. Chowdhary, "Intergenerational Equity: Substratum of the Right to 68 U. Baxi, “The New International Economic Order, Basic Needs and Sustainable Development" in S. Chowdhary et al (eds), The Right to Rights: Notes towards Development of the Right to Development” Development in International Law, Dordrecht: Kluwer Academic Pub., (1983) in 23 IJIL, pp. 225-245. 1992, p. 241. 69 T. M. Frank and D. M. Sughrue, "The International Role of Equity-as- 67 D. A. French, "The Role of International Law in the Achievement of Fairness" (1993) in 81 GLJ, p. 564; see M. Akehurst, ”Equity and Intergenerational Equity" (1999) in 31 ELR, p. 10469; also see J. Kokolt, General Principles of Law” (1976) in 25 ICLQ, pp. 801-825; also see “Equity in International Law” in F. L. Tooth (ed), Fair Weather? Equity R. A. Newman, Equity and Law: A Comparative Study, New York: Concerns in Climate Change, London: Earthscan, 1999, p. 173. Oceana Pub, 1961, p. 34. Equitable Utilisation / 127 128 / International Watercourses Law and Its Application in South Asia development and life standards of the North and South is huge systems in order to ensure greater fairness and justice. It is and the poverty in the South is terrible. There are billions of imbued with such elements as are needed for the achievement people who are living below the $ 1 daily income and they are of broader goals in order to abate hindrances to the common deprived of the minimum amenities of life. The concept of aspirations of the people in a modern liberal world. Equity is achievement of the target of halving world poverty by 2015 is not to be construed as Statutes, but rather as a general basis based on the idea of distributional equity in which it is certainly around which much of the law of it has been formed. It possible to justify the notion of preferential treatment for frequently appears as part of reasoning in judgements, and has developing states.70 As described below, the notion of relevance to the law of trusts.73 Equity should be considered not environmental protection and sustainable development in which only as an individual rule but also as a collection of principles the developed world is required to provide more funding and which are often referred to as rules of equity. technology to developing countries to carry out sustainable development stresses the idea of distributive justice. 3.5 Types of Equity

Equity has developed into a major legal system encompassing Aside from distributive equity, which is perhaps best described the civil and common-law systems, albeit the two system’s as an emerging norm, the use of equity in jurisprudence has approaches differ. The common law system developed in often been divided into three types, equity infra legem, equity England as a separate system of law with its own normative praeter legem and equity contra legem.74 Some commentators status. Equity is not only a principle but also a collection of have argued that a decision ex aequo et bono is a fourth rules. As described by Rossi category, which is envisaged in Article 38(2) of the Statute of “the common law eventually freed equity from its the ICJ.75 The notion of equity has evolved and become an restrictive function ‘as a means of correcting specific indispensable part in the major legal systems of the world. As a laws’ and in so doing, made equity ‘an independent result, it is now widely recognised as a source of international source of fresh rules of law’ and, indeed, a new law. Article 38 of the ICJ provides: 71 system of law". “the court whose function is to decide in accordance with international law such as are submitted to it, shall apply: Equity provides international tribunals with a discretionary c. The general principles of law recognised by civilised (widely accepted) means of avoiding negative effects and some nations;” 72 lacunae in the law. Equity has become an indispensable part of modern democracies and their judicial, political and social

70 Department of International Development (DFID), Halving World 73 P. Todd, Cases and Materials on Equity and Trusts, London: Poverty by 2015, London: 2000, pp.20-22. Also see supra note 67, pp. Blackstone, 1996, p. 1. 10469-10484. 74 V. Lowe, “The Role of Equity in International Law” (1992) in 56 71 C. Rossi, Equity and International Law, New York: Transnational AYBIL, p. 56-57. Pub., 1993, p. 32; this above quotation refers to the writing of the jurist 75 Supra note 69, p.570. Frank and Sughrue have correctly argued it as Gustav Radbruch. fourth type of equity. 72 Ibid. p. 38; also see D. Browne (ed), Ashburner’s Principles of Equity, London: Butterworth, 1933, p. 10 Equitable Utilisation / 129 130 / International Watercourses Law and Its Application in South Asia

Higgins76 argues that Equity infra legem refers to the situation court has the right to decide a case contrary to the relevant legal faced by a court that has to choose between more than one rules when it considers such rules to be 'unjust' in the delivery interpretation of a legal rule; each interpretation being of a fair verdict in tune with equity contra legem. Unlike the acceptable from the legal point of view. In this circumstance, other two forms of equity, equity contra legem can go beyond equity infra legem allows the court to determine which the ambit of legal rules in order to obtain the required and interpretation is the most just, considering the circumstances expected result. In this sense, equity contra legem could be and balancing the rights and obligations of the contending very similar to the ex aequo et bono principle, which does not parties. work under the legal rules but rather contrary to the confines of the rules of law. In essence, it works beyond the legal regime. With regard to equity praeter legem, Lowe has argued that it is Conversely, within this rule, the court is free to apply such similar to the ratio decidendi in municipal law, but completely principles, as it deems suitable in the interest of fair justice. differs from international law.77 However, its application is to There are many examples in international arbitral tribunals fulfil the lacunae in the elaboration of rules, the content of where infra legem has been applied and decisions made. For which are too general. But, it is debatable whether or not such example, the Iran-US claim tribunal decided a series of disputes lacunae exist in certain circumstances. Cheng takes the view78 between the parties by its application.80 In ascertaining the that such authorisation is indeed required, but there are others amount of compensation against nationalisation, there is no who disagree with him on the acceptance of equity praetor proper rule as such, that explicitly stipulates a certain amount as legem. Even if the lacunae exist, the judge has the authority to compensation. In such circumstances, equity provides the fill them by his or her interpretation. Higgins held the view that arbitrator with a principle to ensure the fair amount be equity contra legem is “a softenening of the applicable norm awarded.81 for extra-legal reasons.”79 It is apparent from the analysis that the role of equity as a means of correcting the application of a The general notion of equity is designed to be an aid to legal rule is still a moot point. decision-makers in order to ensure greater justice and fairness. It is not possible by the application of the rigid provision of law The use of equity contra legem is to soften the application for but by the application of other factors such as socio-economic, an extra-legal reason. Higgins argues that the very purpose of cultural or political ones. Moreover, the achievement of a fair using equity is that it is fulfilling the basic objectives as a tool. resolution of a dispute always requires the application of For some, equity allows the decision rather than embrace a just equity. In this light, its invocation is essential. It should, solution. That is to say, equity does not only provide a solution; however, not be understood that equity falls beyond the legal but rather, it gives broader discretion for having a fair and ambit or allows decision makers to decide as they please. It has acceptable solution to the dispute. It is based on the idea that a

80 16 Iran-US Claims 1987, 112, p. 221: in Starrett Housing Corp v. Iran 76 R. Higgins, Problem and Process: International Law and How We Use case, the Tribunal supports the principle that when the circumstances It, Oxford: Clarendon Press, 1994, p. 219. militate against calculation of a precise figure, the Tribunal is obliged 77 Supra note 74, pp. 58-59. to exercise its discretion to ‘determine equitably’ the amount involved. 78 Supra note 76, p. 220. Also see II Iran-US Claims 1986, Harza v. Iran, T. R. 76, p. 11. 79 Supra note 66 p. 220. 81 Supra note 74 p. 57-58. Equitable Utilisation / 131 132 / International Watercourses Law and Its Application in South Asia its own procedure that regulates its application in an effective International Justice has had an uneven and manner. In this connection, equity operates within a sphere of inconsistent history.” 85 settled regulations.82 From the study of judgements rendered by the court, it appears 3.6 The Role of Equity in International Law that the court is not consistent and several approaches have been adopted. For example, before 1982, the court held the The role of equity in international law concerning general and view that delimitation should be decided: shared natural resources in particular is paramount because, “in accordance with equitable principles, and taking without it, a fair justice is not achievable. As each watercourse into account all the relevant circumstances, in such a is unique and the law in the area is still in the developing way as to leave as much as possible to each Party all stage,83 it is impossible to adjudge any disputes without the aid those parts of the continental shelf that constitute a of equity. As the population has increased along with the rise in natural prolongation of its land territory under the 86 the standard of living brought about by innovation and sea.” scientific discoveries, the voracious appetite for more and more resources has became the common ground for increasing But, after 1982, the court took a broader approach on the issue, holding that the ultimate aim in delimiting the continental shelf competition among states. 87 was to arrive at an equitable result. In the later case, equitable In the process of dispute resolution arising from shared natural utilisation was regarded as a customary rule of international law resources such as the IWC agreement among nations, the ICJ whilst, in the earlier case, it was not. and its predecessor PCIJ have developed a very rich stock of jurisprudence in this area.84 French has argued: In the Meuse diversion case of 1937, the PCIJ came to the “the role of equity in the jurisprudence of the ICJ, conclusion that the principle of equity is part of international and before that, in the Permanent Court of law. However, there were differing opinions on the issue between judges.88 Afterwards, the world court resolved several cases relating to the delimitation and sharing of benefits accruing from the utilisation of shared resources between the 82 R.A. Newman, Equity and Law: A Comparative Study, New York: contestant states. Ocena Pub., 1961, p. 20. 83 Supra note 4, pp. 40-45. 84 S. Rosenne, “The Position of the International Court of Justice on the Foundation of the Principles of Equity in International Law”, in A. Boyle and P. Van Dijik (eds), Forty Years: International Court of Justice, the Hague: Europa Institute Utrecht, 1988, pp. 85-108.

85 Supra note 67, p. 10471, he argued that “numerous meanings can be 86 ICJ Reports, (1969) Germany v. Denmark and the Netherlands, p. 53. given to the legal notion of equity. However, the subdivision into 87 ICJ Reports, (1982) Tunisia v. Libya, p. 59. various 'forms' of equity is rather artificial, as, in practice, the ICJ will 88 37 PCIJ (ser.A/B) Nos. 70, 77: the principles of equity are principles of usually utilise the principle without referring to any particular international law, and as such they have often been applied by conceptual understanding of the term. Moreover, … the ICJ has been international tribunals. However, it was the dissenting opinion of Judge neither consistent nor uniform in its approach to equity." Hudson, and the majority decision did not dealt with equity. Equitable Utilisation / 133 134 / International Watercourses Law and Its Application in South Asia

The other aspect of equity as envisaged in the Charter of the developed nations did not fulfil what they had promised at Economic Rights and Duties of States and NIEO89 provided UNCED, i.e., to contribute 0.7% of their income to the South.92 that the rich nations were obliged to give full economic and The other fundamental aspect of intergenerational equity technological support to enhance the lives of the people of (entitlement of future generations) is that it imposes a duty to developing countries. The crusade of the newly independent fulfil the needs of developing countries in order to get rid of states of the third world, undertaken as a movement in poverty and to do this in a sustainable and ecologically sound demanded from the North sufficient technological as well as manner so that the rights of present or future generation are financial help to obviate the grip of poverty. However, the protected. There is not a clear definition on intergenerational North stating that there is no such law in this area compelling it equity but it generally refers to the notion that the international to help the South always challenged this notion.90 The author community is under a moral, even possibly a legal, obligation does support the notion that the North should cooperate with to protect and preserve the environment and its natural the South in order to alleviate the poverty of the latter. resources for present and future generations. Being a part of However, it should be on moral grounds rather than legal duty. equity this topic has an inherent links with this research. The Whatever contribution the nations of the North are making idea is that the present generation in seeking its own prosperity through their Overseas Development Aid is based on moral through exploitation of watercourses, must not jeopardise the grounds and at their sheer discretion. The reasons given for right of future generations to a clean environment. such co-operation from the South is that the present international monetary as well as trading system is unfair and 3.6.1 Unjust Enrichment inequitable to the developing nations in which the developed nations are benefited at the price of the former.91 It was Unjust enrichment is when someone obtains property or gets revealed in the 1997 UN review meeting at Rio de Janeiro that rich without sufficient reason. From the preliminary meaning of it, it points to unreasonable, illegal and unjust ways of getting

89 Supra note 26, pp. 112-130: The group of 77 has called two special richer. Unjust enrichment indicates the proposition that a party sessions of UNGA to discuss and adopt the resolution for achieving should not enrich itself, without legal cause, at the expense of 93 greater justice and economic parity to them by eliminating unfair trade, others. Whilst equity stands for greater justice and fairness, and the monetary policy developed by the North. Two resolutions were unjust enrichment underscores exactly the reverse position and also adopted, but heavily criticised by the developed nations, such as therefore the concepts are closely linked. Australia, France, Italy Japan, UK and USA stating that a 'tyrannical majority' and 'growing tendency … to adopt one sided, unrealistic resolutions' that cannot be implemented at all, further, they were also blamed that these one sided resolutions destroy the authority of United Nations. Moreover, the comment of Julius Nyerere to the reaction of 92 G. Brown, "An Assault on Poverty is Vital too", The Guardian 13 the North was: "I am saying that is not right that the vast majority of February 2003, p. 23. the world people should be forced into the position of beggars, without 93 Supra note, 69, p. 565. Also see R. Boyes, "Poles enraged by memorial dignity. We demand change, and the only question is whether it comes to expelled Germans" The Times, 24 September, 2003, p. 14: Poland by dialogue or confrontation". fears a flood of compensation demands from Germans, whose property 90 M. Jacobs, The Politics of the Real World, London: Earthscan Pub., was taken after the Second World War when it joins the EU next year. 1996, p. 63. The row centres on proposals to commemorate the 12 million people 91 Supra note, 26, p. 108. displaced when Europe's border were redrawn. Equitable Utilisation / 135 136 / International Watercourses Law and Its Application in South Asia

When nations expropriate foreign property without giving The concept is explicitly related to IWL issues, particularly the sufficient reparation, the principle of unjust enrichment allows sharing of downstream benefits between riparian states. Where justice to be obtained through courts and tribunals. The benefits accrue to a downstream country on account of the principles were interpreted in Factory at Chorzow in 1928. work undertaken by an upstream country without contributing Until that decision, at general international law, damages in to the cost, there is unjust enrichment. Furthermore, the expropriation cases has been assessed on the book value of the application of this principle has significantly contributed to the property at the time of its disposition plus interest. The court resolution of water conflicts between numerous countries and held that reparation should reflect not merely the book value of has provided significant guidelines for resolving other conflicts. property at the time of disposition, but all the loss sustained by It is now an established doctrine of equity that no one can expropriation.94 Thus, the role of equity has greatly assisted enrich themselves at the price of another without legal securing fairer justice against expropriation. The other case that justification.96 the Permanent Court of International Arbitration (PCIA) decided by applying the principle of unjust enrichment was the 3.6.2 Estoppel 1932 Norwegian Claim relating to the USA's decision to expropriate ships being built in US shipyards for foreign The doctrine of estoppel also forms a part of equity. It was dealt parties. Once the ships had been requisitioned, the US failed to with for the first time in international law in the context of the pay all the compensation due. This was interpreted as a breach Diversion of Water from the Meuse case decided by the PCIJ,97 of the terms of US contractual obligations and the USA’s in which estoppel was held to impose a duty on a state to submission was rejected on the basis of unjust enrichment.95 refrain from acting inconsistently with the interests of other states. Belgium's construction of a lock to extract water from the River Meuse violated a convention governing access to the river water. A few years earlier, the Netherlands had 94 PCIJ Reports, (1928) pp. 183-195. 95 After entering the First World War, the USA decided to expropriate constructed a lock remarkably similar to the one subject to its ships being built for foreign parties in US shipyards. The dispute was complaints against Belgium. The court found no violation of not settled and was forwarded to the PCIA. The Tribunal’s decision any terms of the convention. The action of the Netherlands in held the view that after requisition of the ships the US failed to pay the this case was akin to estoppel that compelled the Court to reject remainder of the commission was a violation of contract. A private the Dutch claim. However, the claim of estoppel by Costa Rica, firm sought to blame the Norwegian Government for this lapse, arguing that the purchaser's assignee was contractually bound to pay in the case of the Tinoco claims, was rejected by Chief Justice the remainder. The Tribunal rejected a claim for the fulfilment of Taft of the US Supreme Court sitting as a sole arbitrator, on the obligations holding that the expropriation had terminated the ground that Britain’s failure to recognize the Tinoco regime relationship between the firm and the Norwegian purchaser and caused no detriment to that arrangement.98 The Tribunal further crystallised damages. Had the US paid the due amount to the broker, that amount would have been deducted from the fair market value of the contract. The court wrote "it appears to be equitable … to give the 96 R. A. Newman, The Principles of Equity As a Source of World Law, US the right to retain (the amount due the firm) out of the amount (1966) 1 Isr. LR, p. 630. awarded", on condition that the US pay that sum to the broker- 97 Diversion of water from the Meuse, PCIJ (1937), p. 139. Norwegian claims (Nor. V. US) Hague, Ct. Rep, 2nd, Scott, 39, 65 98 Tinoco claims-Gr. Britain v. Costa Rica, 18 AJIL 147, (1924) pp. 148- Permanent Court of Arbitration (1922), pp. 41-79. 157. Equitable Utilisation / 137 138 / International Watercourses Law and Its Application in South Asia maintained that the burden rests with the party seeking to rely 3.6.3 Acquiescence on estoppel both with regard to the evidential burden and that the loss shows such facts. This was not demonstrated by the Acquiescence stands out as another form of equitable estoppel claimant in the Tinoco claims case.99 recognised as a general principle of law-as-fairness, in which silence or the absence of protest may preclude a state from Even in the absence of equity, detrimental reliance as a notion challenging another state's claim. However, it must be may bar, under an implied principle of 'good faith', a party from mentioned here that in order to succeed in a defence of contesting the legally binding effect of its terms of promise. In acquiescence, a state must prove that the second state had the Nuclear Test Case of 1974, Australia and New Zealand v. knowledge of its claims.102 France, the ICJ held that the French official announcement that it would no longer undertake Nuclear tests after 1974 amounted Use of acquiescence was made in the 1951 Anglo-Norwegian to an obligation to act in good faith, conferring an Fisheries case between Norway and Britain. Norway had for internationally binding character on a unilateral declaration.100 decades used a straight baseline to delimit its fisheries zone, Successful invocation of equitable estoppel is tantamount to rejecting the general practice of using a line based on the ensuring that the applicant’s concerns are met and that the coastal low water mark. The court favoured Norway’s apprehended injury will be averted. There was nothing to prove contention and rejected Britain’s argument that it had not that the French declaration would not be implemented, but known of this system of delimitation by Norway on the ground nevertheless, the declaration led the other parties to believe that that Britain, as a maritime power with a strong interest in France would refrain from carrying out further nuclear tests. It Norwegian waters, must have known about the Norwegian is a wider principle of IWL that states are bound to accept those practice and, therefore, could not excuse itself for its failure to principles which have elsewhere been recognised by them. If protest on time.103 India has recognised that riparian neighbour cannot cause harm to her, she also cannot harm to her neighbours. For example, The Temple of Preah Vihear case followed the principle of following India’s objection that East Pakistan’s reservoir acquiescence, and in doing so, brought an equitable dimension project on the far eastern border of Assam project would to the notion of finality.104 The principle of equity precluded a submerge its land, the project was cancelled.101 The reverse state initiating a border dispute which had long been settled. position maintained by India in the construction of reservoirs The case relates to a border dispute between Thailand and that have caused the inundation of Nepalese land must be Cambodia in which two Franco-Siamese Commissions over a stopped under the principle of estoppel. If similar constructions period of sixty years delimited the frontier between French have been exists in Indo-Bhutan and Indo-Bangladesh border Indo-China and Siam. After receiving appropriate maps, the such activities should be stopped. Thai Government registered no objection. The court held that the Siamese failure to object to the content of the maps

102 Supra note 69, p. 568; also see I. C. Gibbon "The Scope of 99 Ibid. Acquiescence in International Law" (1954) 31 BYIL, pp. 147-148. 100 ICJ Reports, (1994) pp. 110 & 118. 103 ICJ Reports, (1951) pp. 31-34. 101 Supra note 4, p. 311. 104 ICJ Reports, (1962) pp. 14-37. Equitable Utilisation / 139 140 / International Watercourses Law and Its Application in South Asia amounted to acquiescence, adding that when two countries measures of compensation.107 The failure to use this clause establish a frontier between them, one of the primary objects is 38(2) demonstrates the reluctance of states to confer unbridled to achieve stability and finality.105 Reasoning for that argument discretion on tribunals to avoid wholly arbitrary decisions. In is right in view of the fact that if once settled border issues be order to invoke this Article specific consent from the party is allowed to arise after a long period of time, the finality of the required. border would remain forever unresolved. The principle of acquiescence does not apply generally to IWL. Under the rule Ex aequo et bono was also evaluated by the PCIJ in the Free of equitable utilisation envisaged in Article 6 of the UNCIW, Zone case (1929) between Switzerland v. France, on the issue even if one riparian state has been utilising a huge volume of of free trading zone rights under the Treaty of Versailles 1919. water, it would be unfair to prevent another riparian state from France challenged such a right on the basis that a clause objecting simply because of that state’s acquiescence, as such abrogating those parts of the Treaty was agreed to by use is just one of the factors in the determination of equitable Switzerland. Under the arrangement, Swiss citizens were able utilisation, and one which can be displaced by other factors.106 to do business in French territory surrounding Geneva without However, it is not the argument of the author that equity may payment of customs duties. The parties formed a special itself be a factor to be considered as part of equitable agreement whereby the PCIJ would first determine the meaning utilisation: equitable utilisation is a principle of equity. of the clause, failing a private resolution of the dispute, and "settle" all outstanding questions. The Court found that the 3.6.4 Ex Aequo Et Bono ( in Fairness and Right) clause did not abolish the regime in regard to the opportunity to settle disputes if the disputants failed to settle the dispute by Ex aequo et bono stands outside the framework of law. If the themselves. The court rejected the French claim that a special use of a set of legal rules is unable to deliver justice, or if there agreement empowered the court "to settle all questions".108 are no such applicable rules to allow the dispensing of justice, However, it seems that recourse to this branch of equity is ex aequo et bono provides both its own ends, means and ignored by the community of nations. justification for use. Under Article 38(2) of the ICJ's Statute, the ICJ is empowered, with the consent of parties appearing 3.7 Equity for Scarce Resource Allocation before it, to decide the case not by the application of law but rather by consideration of socio-economic, cultural and Increasing innovation in science and technology enables states political factors. Until now, no case has been decided on such a to harness resources from the deep ocean, the Continental Shelf basis by the ICJ or PCIJ, but the decision of an administrative and EEZ, which eventually gave birth to new international tribunal of the International Labour Organisation based upon conflicts. There were no specific rules applicable in such the application of the principle of ex acquo et bono and not complicated circumstances, so equity embraced a new based on any specific rule of law was upheld by the ICJ. The dimension to accommodate the interests of all concerned in a tribunal decided a case by examining the appropriate level of careful manner. Equity brings important advantages to this task, damages, ex aequo et bono to fix what the court described as 107 Supra note 69, p. 570; also see ICJ Reports 77, (1956), pp. 56-100. 105 Ibid. 108 Free Zone Upper Savoy and the District of Gex, PCIJ Reports, (1930) 106 Article 6, 36 ILM (1997) p. 704. pp. 10, 34, 40. Equitable Utilisation / 141 142 / International Watercourses Law and Its Application in South Asia affording judges a measure of discretion, within a flexible regime. The other provision is that of the Most Favoured structure and commensurate with the uniqueness of each Nations (MFN) clause, which guards against any negative dispute of scarce resource allocation. As will be illustrated impact of trade on the legitimate rights of developing nations. below, the ICJ has advocated the formula for equitable results The Lome Convention112 sought to inject equity into the global and equitable sharing in the interpretation of equitable commodity market to protect the interests of developing and utilisation. It has been said that without the principle of equity, weak nations through the creation of a compulsory fund for the the allocation and sharing of such resources is not possible, and stabilization of export earning called STABEX. Under this a great disaster of conflicts has been prevented by its system, a country is eligible for the international stabilisation of application. So far, three models of equitable allocation have the price of a product representing at least 5% of its total export emerged to this end.109 The first model is that of corrective earnings in the year preceding the application for STABEX equity, and the second that of broadly conceived equity. Both assistance. Such export earnings from the product must drop at of these models displace strict law but are still rule based, least 4.5% from the average value calculated over a six-year evolving into a set of principles for the accomplishment of reference period for STABEX aid to become operative.113 From equitable allocation. The third model of common heritage the point of view of protecting the interests of developing and equity sets out rules for the exploitation of resources by weak nations, the above mentioned arrangements are ensuring the conservation of humankind’s common patrimony. paramount in promoting the integration and participation of Application of equity in this area will make it easy to nations in a fairer international trade system. Equity is at its understand and apply equity in IWL. heart. The European Union and the US have provided special rights and facilities to developing nations as trading partners.114 3.7.1 Corrective Equity in Trading Arrangements Hence, the notion of equity favours weak and vulnerable nations that are not fully able to compete in the international Corrective equity has played a substantial role in providing arena.115 Special consideration is given to such nations in order judicious treatment and justice to all nations. It seeks to provide to safeguard their interests, and this concept can be utilised in fairness in the sharing of resources underneath the sea, the IWL issues by providing priority to the poorest countries. In the 110 continental shelf and from the open sea. The use of equity has been long executed in order to get a fair benefit and 112 Supra note 69, p. 573-574. protecting the interests of developing nations in international 113 There are four versions of the Convention, i.e., Lome I, II, III, IV, for the enhancement of fairer trading regime. trade and commerce area. Similarly, it seeks to protect the right 114 Ibid. Also see Fourth ACP-EEC Convention and Final Act in 29 ILM of developing nations in the international trading system, (1989), p. 783. within the framework of GATT (now WTO), by providing the 115 “The EU has provided special quotas for sugar exports from the least basic rules of world trade.111 The GATT includes a mechanism developed states”, The Rising Nepal, August 9, (2002); also see staff, for a generalised system of preference (GSP) in order to “Trade is Aid” The Kathmandu Post 25 February, 2003. The United States has provided 38 sub-Saharan African states a duty free quota on introduce the notion of fairness into the international trading their exports of Apparels and Textile Products under the provision of the African Growth and Opportunity Act, 2000. Nepal is also 109 Supra note 69, p. 572. expecting such facility on its garments in the US market and Australia 110 Ibid. has made its market duty free and quota free for 49 landlocked 111 Ibid. See GATT document in 55 UNTS, (1947) p. 187. countries and East Timor from June 2003. Equitable Utilisation / 143 144 / International Watercourses Law and Its Application in South Asia absence of a law protecting the interests of developing Considerations of equity form part of the underlying countries in the above situation, equity has played a vital role in moral basis for rules of law. In this sense equity may strengthening their interests in international trade and business. be regarded as a material source of law, but not as a formal source, nor in itself constituting a legal rule. 3.7.2 Corrective Equity as Analysed to Continental Some circumstances relate to the nature of geology, Shelf Allocation the desirability of maintaining the unity of deposits of natural resources, and proportionality, (which is In the equitable delimitation of the continental shelf under defined as the attainment of a reasonable relationship special geographical and hydrological circumstances, corrective between the extent of a state’s continental shelf and 119 equity has been a milestone in ensuring fair justice and the the length of its coastline). In another case decided protection of the national interests. Initially, such disputes were by an arbitration tribunal, the Anglo-French resolved by application of the conventional rule of Continental Shelf case, the Tribunal, in seeking to equidistance, under article 6(2) of the 1958 Geneva Convention maintain equity, held the view that in the particular of the Law of the Continental Shelf. The application of this rule circumstances, departure from the equidistance rule requires states to render agreement applying the equidistance was essential in order to ensure equity. It stressed formula. This rule, however, also contained an ‘escape clause’, that the proportionality principle should not govern, 120 allowing delimitation to depart from the equidistant line under but merely correct the delimitation. The Tribunal 'special circumstances’. This is an example of corrective seemed to adopt a notion of fairness and yet still 121 equity.116 Such a formulation of equity was implemented in the contain it within the guiding rule of equidistance. 1969 North Sea Continental Shelf Cases between Germany v. Denmark and the Netherlands.117 The court, in its decision In the Fisheries Jurisdiction Case of 1974, (UK v. Iceland), a rejected the contention of the Danes and the Dutch, which were dispute had arisen on account of Iceland’s unilateral based on the equidistance principle. The German contention prolongation of her fisheries zone to 50 nautical miles from the 122 based on a just and equitable share of the shelf was that base line. ICJ Reports, (1974) pp. 1-70. The British Government equidistance has no inherent link either to the nature of the submitted the case to the ICJ asking the court to adjudge and shelf or to any principle of absolute proximity or adjacency, declare such action illegal and safeguard the UK’s rights of and was too sparse and inconclusive to merit a conclusion on fishing in that area. Iceland objected to the court's jurisdiction. 123 that principle alone. Corrective equity has since crystallized In its decision, the court declared that the Icelandic into a customary norm. The court in a similar vein wrote, Regulation of 1972 constituting a unilateral extension of “such delimitation must be affected by agreement in accordance with the equitable principle … by taking into account all the relevant circumstances...”118 119 Ibid. pp. 50-52. 120 Continental Shelf Case, (Arbitration Tribunal) 54 ILR, (1975) pp. 6- 116 Convention on Continental Shelf (1959) 15 UNTS, p. 471, 499 UNTS, 124. p. 311. 121 Supra note 69, pp. 578-580. 117 3 ICJ Reports (1969) pp. 47-53. 122 ICJ Reports, (1974) pp. 1-70. 118 Ibid. 123 Ibid. Equitable Utilisation / 145 146 / International Watercourses Law and Its Application in South Asia

Iceland’s exclusive fishing rights to the 50 nautical mile limit Conference went somewhat further than the ICJ, and developed was illegal. The court held that: a formula of equitable principles for the delimitation of "the most appropriate method for the solution of the maritime zones. In so doing, during difficult and protracted dispute was clearly that of negotiation with a view to negotiations the parties attempted to126 maintain a balance delimiting the rights and interests of both parties and between equity and equidistance. The Informal Single regulating equitably such questions as those of catch- Negotiation Text (ISNT) of 1975 proposed that: limitation, share allocations and related restrictions. The obligation to negotiate followed from the very “delimitation of the continental shelf between nature of the respective rights of the parties and adjacent or opposite States shall be affected by corresponded to the provisions of the UN Charter agreement in accordance with the equitable concerning the peaceful settlement of disputes. The principles, employing, where appropriate, the court could not accept the view that the common median or equidistant line, and taking account of intention of the parties was realised by negotiating all relevant circumstances."127 throughout the whole period covered by the 1973 interim agreement. The task before them would be to The attainment of an agreement on this median line formula by conduct their negotiations on the basis that such must all member states was still a formidable task, because numerous be in good faith by paying due regard to the legal island nations were sceptical, suspecting that the preference for rights of the other and to the facts of the particular equity would jeopardise their position in shelf delimitation. situation and to the interests of other states with According to their view, the median line formula is the best established fishing rights in the areas."124 way to serve their interests. They argued instead for greater emphasis on equidistance, but conceded that the method could This judgement lends credence to the view that cooperation, not be applied in the event of special circumstances.128 As a good faith and good neighbourly relations are the best means to result of more negotiations to arrive at a broader agreement on ensure maximum benefits from shared resources. The judgment the text, several revisions were made to the text to corresponds to the obligation of a watercourse state endorsed accommodate and reconcile the interest of those nations. by Articles 5 and 7 of the UNCIW.125 Finally, the Ninth session (1980) produced a balanced formula:129 3.7.3 Broadly Conceived Equity in Continental Shelf Application "the delimitation of the continental shelf between States with opposite or adjacent coasts shall be affected by The states negotiating the third Law of the Sea Conference (LOSC) in 1973 studied the jurisprudence so far developed by 126 Supra note 69, p. 581. 127 127 14 ILM, 682, (1980), 728, Single Negotiating Text; also see B. H. the international courts and tribunals and found that the basic Oxman," The Third United Nations Conference on Law of the Sea: the tenets of equity had been applied. Taking note of this, the Eight Session” 74 AJIL, (1980) p. 32. 128 Ibid. p. 30-32. 124 Ibid. 129 B. H. Oxman, "The Third United Nations Conference on the Law of 125 36 ILM (1997), 162, para. 67-71, p. 189. the Sea: The Ninth Session" 1980, 75 AJIL, (1981) pp. 211& 231. Equitable Utilisation / 147 148 / International Watercourses Law and Its Application in South Asia

agreement in conformity with international law. Such an In consequence, an equitable result may be arrived at by agreement shall be in accordance with equitable drawing, as a first stage in the process, a median line, every principles, employing the median or equidistant line, point of which is equidistant from the low-water mark of the where appropriate, and taking into account all relevant coasts of the disputing parties. The initial line is then circumstances prevailing in the area of concern.”130 subject to adjustment in light of the above mentioned circumstances and factors.134 However, following some tension, the proponents of equity finally prevailed at the Tenth Session. Article 83(1) of the In the decision in the Tunisia v. Libya case, the court made a LOSC, when opened for signature in 1982, read: forward leap. It also rejected socio-economic factors in "the delimitation … shall be affected by agreement determining the case. Tunisia’s argument was that Libya earned on the basis of international law… in order to a huge and unfair income from offshore oil. The court refused achieve an equitable solution.”131 the contention and held the view that a “country might be poor today and become rich tomorrow as a result of an event such as Since then the ICJ, in deciding cases relating to the continental the discovery of a valuable economic resource.”135 shelf and its allocation, have gone further than this earlier stance. Equity has become the core rule of LOSC as applied by In 1984, a case arose concerning the delimitation of the the ICJ on issues of equitable delimitation and allocation of maritime boundary in the Gulf of Maine area, the USA v. resources. This doctrinal shift, in which a remarkable degree of Canada, over how to share the benefits of the exclusive discretion was exercised, can be seen in the case of Tunisia v. economic zone and areas beyond in the high seas. In this case, Libya and will be analysed below.132 The decision was based on the court ruling on the applicable principles and rules of the equitable principles stating: international law states: "the delimitation is to be effected in accordance with "no maritime delimitation between states with opposite equitable principles and taking into account of all the or adjacent coasts may be affected unilaterally by any relevant circumstances, so as to arrive at an equitable one of those states. Such delimitation must be sought result. … the area of continental Shelf to be found to and effected by means of an agreement, following appertain to other Party not extending more than 200 negotiations conducted in good faith and with a genuine miles from the coast of the party concerned, no criterion intention of achieving a positive result. Where, for delimitation of shelf areas can be derived from the however, such an agreement cannot be achieved, principle of natural prolongation in the physical delimitation should be effected by recourse to a third sense.”133 party possessing the necessary competence. In either case, delimitation is to be affected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic 130 UN conference on the Law of the Sea, Draft Convention of Law of the Sea, 19 ILM, pp. 1129, 1174, July 28-August 29, (1980). 131 Ibid. 132 ICJ Reports, (1982) pp. 58-62. 134 ICJ Reports, (1984) pp. 31-34, para. 76-79. 133 Ibid. 135 ICJ Reports, (1982) pp. 77-78. Equitable Utilisation / 149 150 / International Watercourses Law and Its Application in South Asia

configuration of the area and other relevant the notion of broadly conceived equity a step further than the circumstances, an equitable result".136 jurisprudence relating to continental shelf delimitation, explicitly calling on states to take socio-economic needs into The ICJ again adhered to the same concept of equitable account whilst they are allocating such resources.139 Further allocation as in the case of Libya v. Malta (1985), emphasising radical steps are being taken in respect of access to exclusive the need to arrive at an equitable result along with economic zones and the issues of reasonable and equitable proportionality as one of the governing principles of equity. share for beneficial use of an IWC. The court rejected Malta’s claim regarding its lack of energy resources, the needs for fishery resources, and its requirements The LOSC in its provisions dealing with state access to EEZs, as a developing island state. It also rejected Libya’s contention seeks to provide for the distribution of an area surplus resources that the vastly larger size of its landmass was a factor relevant in accordance with equitable principles that take into account, to the delimitation, and held that equitable utilization was the inter alia, economic need. The provisions relate to the rights of appropriate rule in the case.137 a landlocked state to participate, on an equitable basis, in the exploitation of an appropriate part of the EEZ of coastal states The word ‘proportionality’ has also become one of the of the same region or sub-region.140 States participating in fundamental elements of equity. From its use, the idea of resource utilisation should take into account the following broadly conceived equity can be achieved. For example, in an matters:141 arbitration case1985 the Guinea v. Guinea-Bissau Maritime Delimitation, the Tribunal held to two equitable considerations. “1. The need to avoid effects detrimental to fishing Firstly, to ensure that, as far as possible, each state controls the communities or fishing industries of the coastal state; maritime territories opposite its coasts and their vicinity. 2. The extent to which the land-locked state is already Secondly, the Tribunal cited the need to ensure that other entitled, through agreement, to exploit the living resources maritime delimitations already made or those still to be made in of the exclusive economic zone of the coastal state; the area be given due regard.138 This decision is capable of 3. The need to avoid disadvantaging any one coastal state in taking into consideration the interests of both states so that the particular; and application of the principle of broadly conceived equity results 4. The nutritional needs of the populations of the respective in significant redistribution of resources. states.”

3.7.4 Broadly Conceived Equity in Conventional The Convention also provides preferential rights of access, to Arrangements geographically disadvantaged states determined by the same criteria. On the other hand, the UNCIW provides that the right The principles used to delimit and allocate the resources of the to use such water is coupled with an obligation to participate in sea and the UNCIW are similar. Both instruments have taken the “use, development, and protection” of the watercourse in

136 ICJ Reports, (1984) para. 112. 139 36 ILM (1997), pp. 700-720. 137 ICJ Reports, (1985) pp. 13-41. 140 21 ILM- 1982, LOSC, p. 1283. 138 Maritime Delimitation, 77 ILR, pp 636-685, (1988) (Ct. of Arb.). 141 Ibid. p. 1284. Equitable Utilisation / 151 152 / International Watercourses Law and Its Application in South Asia

“an equitable and reasonable manner”, which should take into in these areas. After five years of production, this amounts to consideration the geographic, hydrographic, hydrological, 1% of the value of the production escalating by 1% each climatic and other factors of a natural character (as explained subsequent year until the twelfth year. It stabilises at 7%, the above in Article 6 of UNCIW). These include the social and amount being disbursed to the parties to the convention economical needs of the watercourses states, existing and according to 'equitable sharing criteria', taking into account the potential uses of resources, the effects of the use in one interests and needs of developing states, particularly those of watercourse system, conservation, protection, development and the least developed and land locked states.145 This system economic use of the water resources and the availability of simply seeks to regulate the EEZ and a certain proportion of the alternatives.142 accrued benefits are to be distributed to all nations equitably; particularly to economically weak, developing, and landlocked 3.7.5 Common Heritage Equity nations. It is a good example of distributive justice in sharing the benefit from a common heritage. The common heritage of mankind is related to the rights of The UN Moon Agreement, which opened for signature in 1979, patrimony, not only to a certain state or group of states but to 146 all nations and peoples. This includes natural and geographical also includes elements of common heritage equity. The elements, such as clean environment, water, ocean, airspace, agreement emphasises the conservation of the Moon, and seeks Antarctica, and the Moon, which are required for the existence to facilitate the exploitation and equitable allocation of its and sustenance of human beings and nature, and are to be resources. It states: protected, preserved and sustained for the present as well as "the moon and its natural resources are the common future generations. There are conventional arrangements, the heritage of mankind … exploration and use of the moon … shall be carried out for the benefit and LOSC provision relating to the seabed authority and the UN 147 Moon Agreement,143 explicitly seeking to regulate this field of interest of all countries”. international law. The agreement calls on states to devise a regime to govern the The LOSC established (Article 156) an International Deep exploitation of the moon with the purpose of facilitating the Seabed Authority to manage and distribute equitably the orderly development, rational management, and equitable benefits derived from exploitation of the common heritage sharing of its resources. States are prohibited from causing element of marine resources.144 The Authority is analogous to a pollution or any other acts disturbing the moon's environment, corporation, having been established to facilitate exploitation of and are obliged to 'pay due regard' to the needs of future an asset (the deep seabed) for the benefit of mankind. generations. Recognising the right of a coastal state in its EEZ, the Convention requires the coastal state to contribute to the Authority at least a fraction of the benefit derived from mining 145 Article 82, LOSC, Ibid. p. 1286. 146 18 ILM (1979) p. 1434, Agreement Governing the Activities of States 142 Article 5, 6, 7, 8 & 20-25 of the UNCIW. on the Moon and Other Celestial Bodies- hereafter the Moon 143 18 ILM (1979), pp. 1434- 1441. Agreement. 144 Supra note 140, p. 1298. 147 Ibid. pp 1435- 1438. Equitable Utilisation / 153 154 / International Watercourses Law and Its Application in South Asia

The 1991 Madrid Protocol to the Antarctica Treaty, signed by environmental resources for present and future generations.155 twenty-four states, provides that the environmental or scientific Since then, the notion has become an almost indispensable part interest in the continent represents a form of common heritage of major environmental instruments.156 For example, the equity, in which conservation is paramount.148 The pact departs preamble of the 1998 Statute of the International Criminal from the mercantile model of common heritage equity, Court states, assuming the role of a trustee pledged to hold this asset in trust “an international criminal court is required for the sake for the benefit of human kind. This concept is taken from a of present and future generations.”157 protocol to the 1959 Antarctica Treaty that banned nuclear and military activity, suspended competing claims by seven The goal of the ICC is to protect present and future generation southern hemisphere states and established rules for scientific from cruel and inhuman brutality. research.149 This Protocol seeks protection of the environment as a 'fundamental consideration' in planning and conducting all 3.8 Equity: an Integral Aspect of Sustainable activities on the continent, and bans all mineral exploitation for Development at least fifty years, as such activities would severely damage the sanctity of the Antarctic environment.150 The Brundtland Report is commonly viewed as the point at

which sustainable development became a broad global policy The right of the yet to be born is not an idea of recent origin in objective. Equity has been a milestone in the preservation and international law. Such feelings have emerged and been protection of the environment by strengthening the idea of developed in the international arena for over a hundred years. sustainable development. The main achievement of the United The idea was evident in the Bering Sea Fur Arbitration where Nations Conference on Environment and Development the USA had argued that it was conserving the seals in the (UNCED) was the adoption of the equitable principle at the common interest of mankind.151 French has argued since then that the notion of protecting the environment for present and 155 Ibid. future generations has appeared occasionally in international 156 a. the World Charter for Nature 1982 in its fifth paragraph provides ' environmental law, for example the International Convention … man must acquire knowledge … which ensures the preservation for the Regulating of Whaling 1946,152 the 1968 African of species and eco-systems for the benefit of present and future Convention on the Conservation of Nature and Natural generations'. Resources,153 and the 1972 World Heritage Convention.154 b. the Madrid protocol on Antarctica, 1991 provides in the seventh preambular paragraph: "convinced that the development of a Each instrument stipulates a requirement to protect comprehensive regime for the protection of the Antarctic environment and dependent and associated systems is in the interest of mankind as a whole …". 148 Supra note 69, p. 593. c. the 1972 Stockholm Declaration in principle 1 states that very 149 Ibid. notion. 150 Ibid. Also see 29-30 ILM (1991), pp. 1462-1486. d. whilst in the Rio Declaration in principles 3 provides, "present and 151 Supra note 67, p. 10478. future generations have both developmental and environmental 152 161 UNTS, 1946, p. 72. needs; apart from this, every document adopted at Rio, bear this 153 1001 UNTS, 1968, p.4. notion explicitly . Birnie and Boyle, pp. 11, 16 & 4. 154 11 ILM 1973, p. 1358. 157 37 ILM (1998), p. 999. Equitable Utilisation / 155 156 / International Watercourses Law and Its Application in South Asia heart of the negotiation process. That phrase appears in each developed state parties to reduce green house gas emissions and (UNCED) document. The main achievement of the entire in the governance of the financial mechanism. Similarly, process is the victory of the principle of equity in major Articles, 8 (j), 15 (7) of the United Nations Convention on negotiations between the rich and poor nations. Weiss has Biological Diversity,161 stipulate the use of the term ‘fair and rightly observed that equitable sharing of benefits’ arising from the use of genetic "the dominant issue in international environmental law material between the state permitting the research and the state for the 1990s is likely to be the one of equity. … who from which the material originates. These benefits include the pays whom, how much to clean up the environment or results of subsequent research and development, 'commercial to develop in an environmentally sustainable way".158 and other utilisation of genetic resources' and the results and benefits arising from bio-technologies. Even though there was a There were altogether five texts at the Rio Conference in 1992, broader consensus for achieving equity and equitable results, of which two (Framework Convention on Climate Change, nothing substantive appears to have yet materialised in terms of United Nations Convention on Biological Diversity) are legally action on the ground. With regard to the meaning of equity in binding. It is notable that all the documents refer to the term the Convention, Sands has described the actual situation 'equity'.159 It is apparent that the international community relied prevailing over the period: heavily on the word ‘equity’ in all its meanings, and it was “Little consideration was given … to what the concept taken as an umbrella concept to effectively pave the way for means or to its consequences when applied to a agreements in the area of providing finance and technology to particular set of facts. Indeed, the way it was the South from the North within a comprehensive and global sometimes referred to suggest that some of its main framework of recognition and commitment to complete proponents had little understanding of its prior use in development work in a sustainable manner. Moreover, recent international law.”162 environmental treaties have relied heavily on the element of equity. For example, Articles 3 (1), 4 (2) a and 11 (2) of the In my view, the meanings of equity and equitable utilisation framework Climate Change Convention, 1992,160 contain have been tested on numerous occasions in several spheres. similar references to equity in securing the contribution of Hence, UNCED does not need to have its own definition. On the lack of any precise definition of equity and equitable utilisation, French has argued that163 there are four interrelated 158 28 ILM (1989), p. 1362: introductory note. reasons as to why the international community was so eager to 159 P. W. Birnie and A. Boyle, Basic documents on International Law and the Environment, Oxford: Clarendon Press, 1995, pp. 395-405 & 252- use a term that had so far received little usage in international 274. The Rio Declaration talks of a new and equitable partnership, and environmental law. Firstly, the text agreed that UNCED was the right to development having to be fulfilled so as to equitably meet not simply concerned with the issue of environmental the development and environmental needs of present and future protection, but rather, the much broader topic of sustainable generations: principle 3 Rio Declaration. Agenda 21 highlights the fact that the development of a new global partnership was ‘inspired by the need to achieve a more equitable world economy’ paragraph 161 Ibid. 2.1,Agenda 21. The Forest Principles states that benefits should be 162 P. Sands, "International Law in the field of Sustainable Development" shared by all states. (Principle1(b)). (1994) 65 BYIL, p. 340. 160 Ibid. 163 Supra note 67, pp. 10475-77. Equitable Utilisation / 157 158 / International Watercourses Law and Its Application in South Asia development. Secondly, flexibility was the concern then to Declaration on the progressive development of principles of ensure that there was no hindrance at the time to reaching an public international law relating to a New International agreement, so that the definition and broader terms would be Economic Order.165 sorted out later by convention of the parties. Thirdly, there was sufficient reason for states to agree to disagree on the The North had earlier agreed to provide 0.7% of their GNP in controversial issues laid aside for resolution in the future. ODA to the developing countries during the Rio Conference Fourthly, the use of the term “equity” at UNCED allowed 1992. In addition to that GEF was restructured (1992) in order international environmental law to integrate more fairly the to achieve the target of sustainable development in numerous needs and interests of developing states, particularly the UNCED documents as a commitment to co-operation.166 After obligation that requires equitable representation within UN its establishment, the GEF contributed enormously by bodies or other institutions, or the equitable sharing of benefits. providing loans to developing countries.167 As French has observed, There is no clear-cut definition of equity and it has been “the use of equity in environmental agreements and considered as a sense of fairness and justice. From this soft law instruments reflects a broader attempt by the perspective, equity does mean greater support and co-operation international community to incorporate the interests of between North and South in achieving sustainable developing states into environmental law and policy. development. Such co-operation unequivocally implies The introduction of differential standards between technological and financial co-operation. The whole endeavour developed and developing states, and the provision of of UNCED with respect to North and South concentrated on financial and technological assistance, are other transferring more aid and technology from North to South.164 examples of the same trend".168 Moreover, after the increasing advocacy for the NIEO by the South, the UNGA has adopted several non-binding documents, In a broader sense, the words “equity” and “equitable” assist in such as the 1974 Declaration on the Establishment of the NIEO ensuring equality in achieving the same levels of development and the Charter on Economic Rights and Duties of States and prosperity to all people in the developing states as are (CERDS), as an endorsement of the earlier principle. Both enjoyed by the people of the developed states. The main basis documents set out pre-conditions to the achievement of greater for this is that environmental sustainability required prime justice and fairer economic arrangements in the international consideration to secure the rights of future generations as well system. This was also supported by the ILA 1986 Seoul as of the present generation. In order to reduce the disparity between North and South in terms of living standards and 164 Supra note 26, pp. 108-111. At the special session of the UNGA, the provision of basic amenities of life, the interpretation of equity Group of 77 nations called for discussion on the problems of raw materials and development, and put their case boldly and forcefully, 165 Ibid. p. 112-130. accusing the developed nations of creating an unjust, and an 166 Supra note 159, p. 739. inconsistent system for them. They passed two resolutions, 3201 and 167 Ibid. p 737 - 40% to biodiversity, 40-50% to global warning, and 10- 3202, containing a declaration and programme of action on the 20% to fresh water resources have been allocated. establishment of the New International Economic Order, and an action 168 D. French, “Developing States and International Environmental Law: plan to carry out this proposal. It was severely criticised and developed The Importance of Differentiated Responsibility” (2000) 49 ICLQ, pp. states refused to accept it. 35-60. Equitable Utilisation / 159 160 / International Watercourses Law and Its Application in South Asia deserves special attention. Thus, equity can be considered a broader interest of a world order characterised by the balanced means to bridge the chasm between the two groups of nations development of all nations. To achieve this, the developed to achieve justice and sustainable development. This is equally states should increase their ODA contributions.171 important in ensuring peace, prosperity and the sustainable development of the earth, with currently more than six billion 3.9 Drainage Basins and Diversion of Waters people and with many more people to replace them in the years 169 to come. It has become fashionable to quote the word The evolution of the concept of the drainage basin is significant “equity” in most treaties, resolutions, conferences, and in this field, in order to fulfil the increasing water requirement declarations, joint communiqués and so on in political spheres for states.172 It should be recalled that the first book published as the meeting point for states with diverse interests and (1931) relating to this area is by Smith, who held the view that agendas. the drainage basin concept must be followed when developing and apportioning the benefits from shared water resources.173 The idea and prominence of equity thus implies an appreciation by the world community that prosperity and development in The drainage basin concept considers the entire river basin as a one part of the globe is not sufficient to maintain the world single unit irrespective of political boundaries. US President order. Unbalanced development in several regions could pose a Theodore Roosevelt advocated this principle. threat to the peace and security of the world. The other "each river system, from its headwaters in the forest realisation is that the level of development achieved in the past to its mouth on the coast, is a single unit and should has been at the expense of the environment, bringing many be treated as such".174 problems such as, climate change, ozone layer depletion, and 170 pollution on land, oceans and within fresh water resources. Later, the 1911 Madrid Declaration175 of the Institute of International Law, in its preamble, recognised the 'permanent In order to carry out the remaining development works in the physical dependence' of co-basin states as a principle of South, pursuant to experience gained in the North, many international law. Several institutions, such as the Convention lessons should be learned to avoid repeating the North’s Relating to the Development of Hydraulic Power as adopted by mistakes. The North too must reverse its profligate the Conference of Communications and Transit at Geneva in consumption of resources. In the meantime, the development of the South must not be discouraged or hindered, but carried out 171 Supra note 90, p. 63: following the Second World War, the US gave by integrating environmental concerns within the framework of aid of almost 2% (100 billion a year) of its GNP to Europe for three sustainable development. In doing so, the North must co- years. But the USA at present is giving less then 0.7% in aid, most of operate by all means possible with the South in dealing with the this goes only to Israel, Egypt, Indonesia, and China. Jacobs has suggested increasing the North’s aid. 172 C. B. Bourne, "The Development of International Water Resources: 169 P. Brown & J. Vidal, “End seas of poverty” , The Guardian, 27 August The Drainage Basin Approach" (1969) in 47 CBR, p. 64. 2002, John Pronk, Envoy of UN Secretary General to the WSSD is 173 Supra note 3, p. 31. quoted as saying that the poverty of developing countries should be 174 Supra note 172 p. 64. addressed by the help of developed states, p. 3. 175 D. A Caponera (ed), The Law of International Water Resources, Rome: 170 Supra note 159, p. 340. FAO Legislative study no 23, 1980, p. 274. Equitable Utilisation / 161 162 / International Watercourses Law and Its Application in South Asia

1923,176 the Seventh Montevideo Conference of Pan-American There are several arguments and facts that do not always states in 1933,177 and the resolution of the Inter-American Bar support the norm of drainage basins as indivisible geographical Association at Buenos-Aires in 1957 all supported this units. Exceptions occur in two ways: one by natural notion.178 The idea of the drainage basin as a single unit, phenomenon like earthquakes, volcanic eruptions, landslides, together with the idea that the interventions of basin states soil erosion or where the river itself changes course.182 The should not be contrary to the basin-wide spirit, have invoked other includes human-induced processes like intra-basin the interest of the international community. They have now diversion of water that has been allowed in several been recognised as part of international law. These concepts circumstances. In the US, there are several examples of huge have been codified in the1966 Helsinki rules and the UNCIW, water transfers between basins, which have been permitted by at its Dubrovnik Meeting in 1956, adopted a statement of the Supreme Court in several circumstances.183 In Israel, principle: Turkey, Russia, India and China, huge diversion structures are still are being constructed. "so far as possible, riparian states should join each other to make full utilization of waters of a river both An example of inter-basin diversion in international rivers has from the view point of the river basin as an integrated been provided for by agreement, as in Article 3 of the 1945 whole, and from the viewpoint of the widest variety agreement between Austria and Yugoslavia dealing with the of uses of the waters, so as to assure the greatest Drava River.184 Article 1 of the 1957 Treaty between 179 benefit to all". Switzerland and Italy concerning the Spol River185 also provides for such diversion management. Article VI of the This resolution, along with the 1958 New York Convention of Boundary Water Treaty of 1909 between USA and Canada the ILA formed the basis of the Helsinki Conference of 1966, concerning the St. Mary and Milk rivers has also allowed for which adopted the Helsinki Rules on the Uses of Waters of diversion.186 Diversion into the Maine River had been carried 180 International Rivers. The development of the drainage basin out in 1860. Other examples of international diversions are the and the equitable utilisation rules, emerged from a fertile Israeli undertaking to take water from Lake Tibris through a concept, that of ‘community of interest’. According to the canal and pipeline to the Negev Desert, and Chile's diverting of judgement of PCIJ in the Oder River case, the community of some of the waters of the Luca River, which flows from Chile interest in a river is the basis of common legal rights of co- into Bolivia, into a national drainage basin.187 There were also basin states and the foundation of IWL.181

182 Supra note 172: The Great Lakes drainage followed southward first via the Mississippi river during the Pleistocene period and later via the 176 Ibid. p. 45. Rome outlet into the Hudson river and then again changed to the St. 177 Ibid. p. 204. Lawrence river. The Kosi river in Nepal has moved 112 km eastward 178 Ibid. p .317. during the past 130 years. 179 Ibid. p. 287, Report of the Forty Seven Conference of the ILA held at 183 283 U. S. 336 (1931), p. 336. Dubrovnik, (1958), pp. 241-243. 184 227 UNTS, 1954, p. 128. 180 Report of the Fifty Second Conference of the ILA held at Helsinki, 185 36 LNTS, 1925, p. 77. (1966), pp. 484-532. 186 Supra note 172, p. 72-73. 181 River Oder judgement, PCIJ series (1937), pp. 221-222. 187 Ibid. p. 71-72. Equitable Utilisation / 163 164 / International Watercourses Law and Its Application in South Asia disputes between the USA and Canada about the Canadian Buenos Aires Resolution, and the Madrid Declaration, 1911.191 proposal for diverting the Columbia River water through the Articles IV and V192 of the Helsinki Rules and Articles 5, 6, 7, Fraser Diversion Scheme, and this was not implemented.188 The 20, 22, and 24 of the UNCIW reaffirm these ideas. Lake Lanoux case provides a good illustration of a diversion in which the Arbitral Tribunal rejected Spain’s argument and held The report of the Nile Commission, which was embodied in the that a diversion followed by restitution was not contrary to the 1929 Nile Waters Agreement between Egypt and Sudan, treaty provision and international law.189 protects only the efficient utilisation of waters from serious injury by the acts of co-riparian state.193 The approach that only 3.10 The Right of a State to Utilise Water in its own efficient utilisation is to be protected under international law Territory was somewhat diluted by the Rau Commission in 1939, regarding the disputes between Punjab and Sind. A commission headed by Sir Bengal Rau, recommended that the Sind should Every state does have the right to utilise the waters within its transform its wasteful inundation canal system into a weir- territory; however, this right is not unlimited and unconditional. controlled one, and that Punjab should allow Sind three years to Each state can use the waters in such a way that it does not do so before starting its own project, and Punjab should injure the other watercourse states on account of its utilisation. contribute to the cost of the barrage necessary to make the Court judgments such as the Lake Lanoux Arbitration, and the conversion of the canals in Sind.194 The American experience verdict on the diversion of waters from the Meuse case illustrated by the Supreme Court decision in Wyoming v. supported this view explicitly. In U.S. inter-state water cases, Colorado supports this notion of useful and beneficial such as Connecticut v. Massachusetts, New Jersey v. New York, utilisation.195 and Kansas v. Colorado, the right of states to utilise waters in their territory has been safeguarded and advocated (which has Article 2 of the 1933 Declaration of Montevideo, provides that been evaluated already). However, the first precondition to “… no state may, without the consent of the other such utilisation is that it must not be injurious or harmful to the riparian State, introduce into watercourses of an other basin states, and that the share one is entitled to must not international character, for the industrial or be exceeded.190 The idea of not causing injury as enunciated in agricultural exploitation of their waters, any the Trial Smelter case sic utre tuo ut non atianum laedas alteration which may prove injurious …”196 (analysed above) is one of the foundations of this idea. 191 Ibid. pp.195-202. As discussed earlier, Article 4 of the Salzburg Resolution of the 192 Article 4 of the Helsinki Rules 1966, and the UNCIW, Article 6 ILI in 1961 completely prohibits any utilisation that might prescribes the conditions prerequisite for Article 5. 193 Supra note 6, p. 214. cause injury, as did the Declaration of Montevideo, the 1957 194 Ibid. p. 215: the Commission found that the upstream project would in fact cause material injury to Sind's inundation canals which were 188 R. W. Johnson, “The Columbia Basin” in Q. Garreston, R. Hayton & operable only at times of flood, and it was the method of irrigation and C. Olmstead (eds), The Law of International Drainage Basins, New not the volume of water used that was the source of the problem. York: Ocena Pub, 1967, pp. 202-220. 195 Ibid. pp. 217-218. 189 24 ILR (1961) p. 101. 196 Ibid. p. 223; also see the Seventh International conference of OAS at 190 Supra note 6, pp. 190-191. supra note 174, p. 204. Equitable Utilisation / 165 166 / International Watercourses Law and Its Application in South Asia

Article 3 states in the case of damage referred to in the River Case, however, rejected the Hungarian citizens’ claim foregoing Article, an agreement of the parties shall always be that diversion of the Leitha waters inside Austria was a necessary. In the case of any injury, the states concerned must violation of customary international law.201 The concept of not involve themselves in negotiation and seek out a satisfactory causing injury or any harm to the other basin states was also resolution of the dispute by paying reparation for the injury. For affirmed in the Franco-Italian dispute over the use of the Roja instance, India paid compensation to Pakistan when Pakistan’s River water.202 irrigation network was disrupted by partition and the construction of an irrigation network was required in In a recent case concerning the construction and Pakistan.197 implementation of the Gavcikovo-Nagymaros dam, the ICJ held the view that the operation of Variant C by Slovakia, to In the 1872 Helmond case, such rights and obligations were mitigate the harm caused by non-implementation of the Treaty provided to both states.198 Nonetheless, Iran challenged the by Hungary, where 80% of the waters were diverted, ignoring decision and it has not been applied yet. In the inter-state Hungary's legitimate interest in it, was illegal.203 Thus, for its dispute between Aargau and Zurich, the Federal Court of illegal work Slovakia was required to pay compensation to Switzerland in its decision of 1878, upheld the principle of Hungary for having adversely affected Hungary’s reasonable equality of right for both states over their common and equitable entitlement over the beneficial use of those watercourse.199 waters. In the Corfu Channel case, the ICJ adjudged that respect for territorial sovereignty is an essential cornerstone of The German Federal Court, in the case of Wittenberg and international relations. Albania was held responsible for the Prussia v. Baden in 1927, decided that a state is under "the duty damages incurred by the British vessels and crew, and it was not to injure the interest of other states".200 The disputes were required to give notification of the mines lying beneath the resolved later by mutual agreement. In 1913, the Austrian surface of the sea, where the accident had happened.204 Court, the Imperial Royal Administrative Court, in the Leitha In the context of state practice, a co-riparian state has a right to 197 Ibid. p. 231.; also see supra note 63, p 208-The Indian contribution utilise the waters within its territory on the condition that such was fixed at US$ 174 million, and around US$ 800 million was allocated by western governments for the Indus Development Fund. 198 Ibid. p. 235-36; also see II YBILC (1974), pp. 233-234. 201 Annual Digest of Public International Law Cases, (1940) pp. 594-595. 199 Schindler, "The Administration of Justice in the Swiss Federal Court in 202 Annual Digest of Public International Law Cases, (1938-1940) p. 120. International Disputes" (1921) in AJIL, pp. 169-172: A license to build 203 37 ILM (1998), pp. 168-239. a hydro-electric plant on the Jonalach River was given under Zurich 204 ICJ Decision on Corfu Channel case, (1949), ICJ Reports, p. 4, "the law, on the consideration that a certain sum of money deposited in a court draws the conclusion that the laying mines of the minefield could bank be used to indemnify persons whose existing uses downstream not have been accomplished without the knowledge of Albania. As might be injured by the new works. The work diminished the flow to regard the obligations resulting for her from this knowledge, they are downstream Aargau which led to Aargau complaining to the Federal not disputed. It was her duty to notify shipping and especially to warn Court to declare the former concession invalid. The court called upon the ship proceeding through the strait on October 22, of the danger to the parties to utilise waters as such way that did not create any harm or which they were exposed. In fact, nothing was attempted by Albania to cut the entitlement of other cantons. prevent the disaster, and these grave omissions involve her 200 Annual Digest of Public International Law Cases, (1927) p. 128. international responsibility”. Equitable Utilisation / 167 168 / International Watercourses Law and Its Application in South Asia utilisation must not cause any harm to other co-riparian states. attacks on Bangladesh from India.209 Turkey has proposed an With few exceptions state practice, treaty regimes and judicial ambitious, complex and mammoth water transfer project from pronouncements all suggest that the right to use waters in one’s the Sehan and Ceyhan rivers to several Arab countries, in order own territory is restricted and conditional in the sense that to solve their acute water shortage problems by transporting states must first fulfil their obligation.205 This constitutes state water through a pipeline across thousands of kilometres. If this practice and opnio juris sufficient to make it customary proposal succeeds, Turkey will have a dominant position in the international law. 210 Middle East (ME). The proposed Fraser River Diversion in 3.11 Water as a Political Weapon the Columbia Basin by Canada compelled the USA to agree on the downstream issues raised earlier, which led to the 211 Water has been used as a political weapon in order to advance conclusion of the Columbia Treaty 1961. interests of individual states on numerous occasions. As has been seen, Egypt has shown its interest in allowing Israel Peter Glecik, an expert on water and conflict, has suggested that water has played a role in international conflict in history, access to waters of the Nile so as to resolve the Palestine and will in the future too. He talks about 'war against nature' problem and liberate Jerusalem from Israeli rule for political, rather than calling it “war caused by water related disputes.”212 religious and cultural reasons. Israel objected to this offer by It is also increasingly argued that the availability of fresh water stating that it was not ready to trade Jerusalem for Egyptian 206 has become a part of human rights, because water, like oxygen, water. Jordan recognised the Israeli rights to the Jordan River is a primary need of human beings for their existence.213 The waters in return for the latter acquiescing in Jordan’s right to water and its linkage with human rights has been 207 procurement of American weapons. Syria withdrew its widely discussed and recognised as a basic human right, and is support to the Kurds fighting inside Turkey in lieu of 208 uninterrupted flow of the waters of common rivers. 209 Supra note 49 (Crow), pp. 122-123. Bangladesh allowed India use of shared waters in return for 210 Supra note 14, p. 78-79: Turkish President Ozal in 1987 suggested that India denying support for guerrillas who were carrying out a pipeline could be constructed in the Seyhan and Ceyhan rivers in the southern Turkey to deliver water to Sharjah in UAE and to Jeddaha on the Red sea. Such a pipeline would carry 3.5 thousand metres per day. The estimated cost of this has been put at US$ 20 billion. A second 205 M. Picasso Botto, "The Amazon Cooperation Treaty: A Mechanism for suggestion, made public in 1991 was that a mini-pipeline be built as far Cooperation and Sustainable Development" in A. K. Biswas, N. as Jordan; using the waters of the Goksu or Manaugat rivers west of Cordero Benedito, P.F. Brague & C. Tortagdu (eds) in Management of the Sayhan and Ceyhan rivers. Latin American River Basin: Amazon, Plata, and Sao Francisco, 211 R. W. Johnson, "the Columbia Basin" in A.H. Garretson, et.al (eds), Oxford: Oxford University, 1996, pp. 86-93 & 120-121. The The Law of International Drainage Basins, New York: Ocena Pub., Tennessee, Loire, Ganges, Mekong, Zambezi, Plata, and Amazon river 1967, pp. 205-210. basins works were carried out in the similar way. 212 http://www.worldwaterforum.org/index2.html. 206 Supra note 13, p. 57. 213 Ibid. It was discussed by the World Water forum 2002 that a water 207 Ibid. p. 49. right is human right and international law should treat it in this sense. 208 M. Murakami, Managing Water for Peace in the Middle East: See S. McCaffrey, “A Human Right to Water: Domestic and Alternative Strategies, Tokyo: United Nations University, 1995, p. 23. International Implications” (1992) in 5 GIELR, pp. 1-23. Equitable Utilisation / 169 170 / International Watercourses Law and Its Application in South Asia associated with the right to development of states in the 21st Besides this, the Water Resources Committee (WRC) of the century.214 McCaffrey has argued that the right to life stipulated ILA, which has continued its work on the non-navigational uses in the International Covenant of Political Rights, Universal of international watercourses, has adopted an article on Declaration of Human Rights and also economic rights are ‘Adequate Stream Flow’ at its 1998 Rotterdam meeting and a inextricably interwoven with human rights issues. Moreover, he consolidation of the ILA Rules on International Water also suggested that the right of a state to receive an unhindered Resources 1966-1999 at its meeting in Italy in June 1999. In its flow of water from shared watercourses is also linked with pursuit of the Helsinki Rules 1966 and the Settlement of these human rights.215 With respect to the relation between International Water Disputes, the WRC has continued its study, peace and water in the case of the ME, it is a widely recognized and the recently held Vienna meeting worked on strengthening 219 fact that without the settlement of water sharing and allocation the Rules. The general principles of Article 3 of the issues in the ME peace will not possible.216 Campione Consolidation on the Rules on International Water 220 Resources accommodate this rule. In the article on Adequate 3.12 Recent Developments on Equitable Utilisation Stream Flows, it stipulates:

The Gacikovo-Nagymaros case, decided by the ICJ in 1997,217 "consistent with the principle of equitable utilisation, and the 1997 UNCIW have confirmed equitable utilisation basin states shall, individually and, where appropriate, within the rules of IWL. Most bilateral treaty agreements have in co-operation with other basin states, take all focussed on equitable sharing of benefits, particularly those reasonable measures to ensure stream flows are treaties which were made after the 1990’s.218 adequate to protect the biological, chemical and physical integrity of international watercourses, including their estuarine zones".221

There are increasing environmental considerations in the use of 214 Ministerial Declaration of the Hague on Water Security in the 21st century 22 March (2000), Second World Water Forum held in the IWC. For example to implement large water projects, Hague, Para 1; also see supra note 212 (McCaffrey). construction of a dam is unavoidable; but many dams and 215 H. Smets, “The Right to Water as a Human Right” (2001) in 5 EP&L, reservoirs are failing to realise the objectives for which they pp. 248-250. were built. The reasons may be technical, environmental or 216 Supra note 208, King Abdullah of Jordan and Soviet President Mikhail social. Some appear to be inflicting more harm than realising Gorvachov stressed the point during the Hague water conference that the Middle East problems and its relation to water: "no national the bounties they were initially supposed to generate, as is solution will solve our water problems, there has to be international indicated in the report of the World Commission on Dams involvement; the water shortage in the Middle East has the potential to result in war if not resolved in next 10 to 15 years”. 217 37 ILM (1998), pp. 179-191, “Hungary, in the treaty of 1977 had 219 www.ila-hq.org. consented to share benefits from the utilisation of Danube water, but 220 Article 3 states: "each basin state is entitled, within its territory, to a not to be forfeited its basic rights to an equitable and reasonable reasonable and equitable share in the beneficial uses of the waters of an sharing of the resources of an international watercourse”. international drainage basin". ILA booklet on the London conference 218 Mekong, Ganges treaty between Bangladesh and India, and the 2000, Water Resources Committee, p. 4. Mahakali treaty between Nepal and India. 221 Ibid. p. 2. Equitable Utilisation / 171 172 / International Watercourses Law and Its Application in South Asia

(WCD).222 For example, the Aswan dam in Nile and Farakka in Andrassy, Laurterpacht and others.225 The ILI in its 1911 India have inflicted damage to the environment. Jackson has Resolution recommended the establishment of a Joint rightly observed that the notion of Third World leaders in Commission as an advisory body to carry out projects on such relation to environmental protection and its relation with basins.226 This idea was also advocated at the Seventh development is that environmental problems can only be International Conference of American States held at tackled when poor countries have achieved a certain level of Montevideo in 1933. An early Joint Commission to undertake prosperity. Moreover he gave an example that the first Indian such a special responsibility (to determine the best sites for Prime Minister, Mr Nehru, described dams as the temples of building locks on the Meuse) was constituted in 1785 between modern India and saw them as a symbol of national pride.223 Germany and the Netherlands.227 Since then, water conflicts More than 57% of all dams are in India and China.224 and disputes have been mitigated and resolved through the creation of bi-national bodies that have greatly contributed to 3.13 The Role of Joint Commissions in IWC the equitable resolution of water disputes. The roles of such commissions, committees or groups have always remained The idea of treating an IWC as a single unit, ignoring the catalytic and commendable.228 political boundaries, requires mechanisms that bridge the gap between sovereign nations. To pursue this notion, the creation The reasons for the success of joint bodies are multi- of an agency which is independent of governments and able to dimensional. They include neutrality, expert knowledge on the resolve issues of common concern is essential. The early subject and a strong will to seek out a sound and acceptable writings of jurists that contributed to the development of this resolution under special circumstances. The tremendous concept have been immensely beneficial. For example, Smith success of such commissions can be seen in practice in the enunciated the idea in the 1930s, and was supported by major river basins.229 More than 300 IWCs have come into being after the rupture of the former Soviet Union and Yugoslavia; the numbers are increasing. For most of the watercourses concerned such commissions are already in place. 222 WCD, Dams and Development: A Framework for Decision Making, It is therefore argued that the establishment of a commission Earthscan, London, (2000), pp. 8-10. 40 to 80 million people were could contribute to the resolution of any impasse, however long displaced by these dams, people’s health and livelihood have often and complicated a dispute may be. The constitution of such a been put at risk and adequate compensation has not been granted. This has also caused severe damage to the environment. In two years, the commission undertook studies of 11 large dams in five continents, 225 L. A. Teclaff, The River Basin in History and Law, the Hague: surveyed 150 dams in 56 countries, conducted 17 thematic reviews Martinus Nijhoff, 1967, p. 152. along five dimensions of the debate, as well as four regional 226 Supra note 198, p. 275: Article 7 suggests appointing a Joint consultations and attracted 947 submissions form 97 countries. Also Commission. see W. Barnaby, “Re-routing World Waterways”, in The Times, 227 Supra note 225. December 1 (2000), p. 26. 228 Even complex issues have been resolved by such entities, for example, 223 B. Jackson, Poverty and the Planet: A Question of Survival, London: by the commissions between Canada and the USA, Mexico and USA Penguin, 1994, p. 10. and even between arch rivals India and Pakistan. 224 Supra note 222, pp. 40-42; also see A. Roy, “The People vs the God of 229 T. Upreti, "The Role of Joint Commission in International Big Dams”, The Times of India, 25 October (2000), p. 15. Watercourses Issues" The Kathmandu Post, 22 July (2001). Equitable Utilisation / 173 174 / International Watercourses Law and Its Application in South Asia commission could be varied, involving bureaucrats, politicians Treaty. Its jurisdiction is more limited in many respects than the and even heads of state.230 The Mahakali River Treaty 1996 USA-Canada IJC. Nevertheless, it has made an immense between Nepal and India, envisages such a joint commission. contribution to the resolution of conflict and reconciled the Despite this, the commission has yet to materialize, and neither interests of both nations. The implementation of the treaty’s the finalisation of DPR nor the disputes over inundation provisions is its basic duty. The commission consists of two between the two countries have been resolved. national sections. A single commissioner, who must be an engineer, heads each section. Experience suggests that public The International Waterways Commission of 1905 (later demand in both countries is for the jurisdiction of the replaced by the Joint Commission established under the Treaty commission to be expanded to enable it to cover a wider range of 1909 between Canada and the USA)231 is a better example. of issues.233 This Treaty is a landmark event in the development and resolution of serious disputes over the use of waters between a The creation of a Joint Commission in Europe took place in the powerful state and a weaker neighbour. This Treaty provides early Nineteenth century. Several commissions exist with that in the event of an injury, the party that inflicts such injury jurisdiction over the Rhine, Danube and Meuse Rivers. For the should negotiate to abate and mitigate such injury or pay Nile basin, the Nile Commission is in place; for the Indus, there reparation for it. The commission has quasi-judicial authority to is a Joint Commission, which has successfully worked even administer and, conduct research and investigations as well as during times of war between the arch-rival states.234 There are public hearings. This is possible through political will, even separate multilateral projects for the Mekong, SADC, Amazon though the physical conditions of both states differ, and their and so on, which are also administered and implemented of interests vary. Article VII of this Treaty establishes the IJC with commissions. The results show that the creation of a Joint six commissioners, three appointed by each of the Canadian Commission or a committee in order to successfully implement Prime Minister and US President. Without the consent of the treaty provisions and enhance co-operation in using the waters IJC, no water projects are possible in the IWC.232 Moreover, of an IWC for mutual benefits is essential. every complex issue has been resolved through it. It is the best example of the sharing and allocation of mutual benefits from a The tremendous success of such commissions and their smooth shared watercourse using the mechanism of an IJC. working is well exhibited in the Scandinavian states. Russia The International Boundary and Water Commission (IBWC) is and Finland set up the Joint Frontier Commission in 1964. The a mechanism created by the USA and Mexico under a 1944 Finland-Sweden Frontier Rivers Commission was set up in 1971 by the Boundary Rivers Agreement, as was the Finish- 230 Supra note 225, p. 140-141: The Upper Volta River Authority, is Norwegian Frontier Rivers Commission. As argued by headed by the President of the Ghana, although it is a national authority. 233 S. Mumme, "Innovation and Reform in Transboundary Resource 231 D. LeMarquand, "The International Joint Commission and Changing Management: a Critical Look at the International Boundary and Water Canada-United States Boundary Relations" (1993) in 33 NRJ, p. 62, Commission, United States and Mexico" (1993) in 33 NRJ, p. 103, also also see D. J. Allee, "Subnational Governance and the International see H. InGram & D. R. White, "International Boundary and Water Joint Commission: Local Management of United States and Canadian Commission: An Institutional Mismatch for Resolving Transboundary Boundary Waters” (1993) 33 NRJ, pp. 133-151. Water Problems" 33 NRJ, et al., pp. 153-154. 232 Ibid. pp. 65-67. 234 Supra note 17 (Soffer), p. 250. Equitable Utilisation / 175 176 / International Watercourses Law and Its Application in South Asia

Fitzumaurice,235 the Finnish-Swedish Commission is working the gap between wealthy and poor nations reconciling the as a national entity in both nations without any problem. It is divergent interests of the developing and developed nations. functioning as a court and administrative organ in both states, to the exclusion of national courts and administrative organs. In the legal sphere, equity can be used to administer fair and This may only be possible where the judicial systems, rational justice to all people of the world. Moreover, its procedures and existing law are as close they are in both these application here is to ensure fairness and justice, and to address countries. Fitzumaurice further argued that this legal proximity the interests of the contestant parties. Its application is most allows a solution that may be called 'merged sovereignty'. In appropriate wherever there are legal lacunae, rigidity or several respects, it represents the best example of international inability to resolve issues related to particular exigencies. It can co-operation, one that has positively honoured the rights of be argued that without recourse to equity, a proper and just indigenous people. The Sami people’s inherited rights over adjudication of IWL disputes is not possible. As a principle reindeer and fishing have been protected and enhanced. relied upon on numerous occasions, it has been recognised by However, the Joint River Commission between India and the majority of treaty regimes and both supported and advanced Bangladesh established under a 1977 agreement, which was by courts and tribunals, municipal and international. Most later upgraded to Ministerial level, failed to obtain its writings of the publicists support the notion that equity has objectives due to the differences of opinion on how to augment been assimilated into IWL. However, the obligation not to flow in the dry season. This prevented the Commission from cause any harm or deprive other watercourse states of their obtaining the objectives set out on its establishment.236 rights always binds states in each circumstance. Each watercourse state must always comply with this duty, which 3.14 Conclusions implies that a use is inequitable if it inflicts any injury or 237 harm. The importance of equity in the modern world is paramount. The application of it in political, socio-economic, trade and However, the said rules are by no means complete and environmental issues has become a common dimension. Its link universally accepted. There are many matters which are still 238 with politics creates a truly democratic system. Similarly, in the contentious and particularly criticised by some upstream and environmental dimension, it secures healthy environmental downstream states alleging that the reasonable and equitable rights for both present and future generations. In the area of rule favours the other. Perhaps, Jennings may be right to argue trade, commerce and economics, equity has become an explicit link for vouchsafing the judicious economic rights of developing nations to participate in a healthy and equitable 237 Commentary, YBILC, (1984), pp. 340-341. economic and international trade system. Thus, equity bridges 238 Supra note 1: Fitzmaurice has argued that paragraph 1 and 2 of Article 7 are conflicting; also see, UN Doc.A/C.6/51NVW/CRP.94, A/C.6/51/SR.62, April 4, 1997: During the UNGA discussion on the instrument, France criticized the draft, stating the haste in negotiations 235 Supra note 1, p. 461. had created serious procedural discrepancies, and imbalance between 236 S. M.A. Salman & K. Uprety, Conflict and Cooperation on South up and downstream states with many ambiguities. Ethiopia abstained, Asia’s International Rivers: A Legal Perspective, the Hague: Kluwer stating that the draft favours downstream states at the price of upstream Law, 2003, pp. 151-159. states. Equitable Utilisation / 177 178 / International Watercourses Law and Its Application in South Asia that “water resources law is surely not ripe for codification.”239 reaching implications with several inherent difficulties. Weak Special Rapporteur McCaffrey has rightly observed that despite and vulnerable countries are in a precarious position in utilising some of the reservations made by member states, the UNCIW these resources due to the numerous obstacles, such as a lack of is the first legally binding framework instrument with universal cooperation by other watercourse states, lack of capital or jurisdiction, which would contribute to the attainment of the technology, and international reluctance towards any goals of the Charter of the United Nations (for the peaceful meaningful cooperation in utilising shared resources. Yet resolution of disputes) by its successful codification and obtaining an integrated and holistic approach, good faith, progressive development of the rule in international law.240 In cooperation and joint management (including the use of the the meantime, it must be acknowledged that there is no equitable utilisation rule) appears the best way to maximise the universally accepted definition of equity and equitable benefits.243 Multilateral investment agencies such as the World utilisation. Therefore, there is a lack of unanimity on when and Bank, other development banks, UNDP, IMF, GEF, and the how to apply its provisions in circumstances of unique developed nations must play a more creative role, following geographical, hydrological, or political conditions, and there is that played by the World Bank in resolving the disputes over a large loophole for manoeuvring, which poses a formidable the Indus Water Treaty.244 In order to accommodate and challenge to codification. Equity has provided court’s with address the issues of weak and vulnerable nations, some much needed flexibility, a flexibility that has already enabled it concessions have already been given by instruments or to reach decisions in matters involving the disparate claims of institutions such as LOSC, GATT & WTO,245 the EU,246 and developed and developing countries over such resources.241

Regarding to significance of equity, however, Higgins cautions, 243 A. M. Duda & Mohamed T. El-Ashry, "Addressing the Global Water “the general principle of equity and proportionality and Environment Crisis Through an Integrated Approach to the are meant to oil the wheels of decision-making but Management of Land, Water and Ecological Resources" March 2000, we should be sceptical. The concept of equity, in 25 WI, p. 116. designed to be an aid to decision-making, carries 244 A. K. Biswas was of the view that the leadership shown by Mr Black, 242 the then President of the World Bank in resolving the Indus treaty with it serious problems.” should be followed by other executives of the numerous agencies which would be able to achieve broader development and equitable It has been argued that equitable utilisation is the best tool for society. achieving justice in shared resources, and is the best possible 245 Some quota free and tariff free entrance for the least developed means of resolving conflicts. In practice, however, it has far country’s products and other concessions have been offered in the Fourth Ministerial meeting that took place in Doha in 2001. Also see S. P. Subedi, “The Road from Doha: The Issues for the Development 239 R. Jennings, “Keynote Address” in Resolution of International Water Round of the WTO and The Future of International Trade” (2003), in Disputes, the International Bureau of the Permanent Court of 52 ICLQ, p. 426-46. Arbitration (ed), the Hague: Kluwer Law, 2003, p. 26: he has argued 246 Staff, “European Union provides sugar quota”: The Kathmandu Post that technical experts also should have been included in the 16 April 2003, Under the EBA Scheme the EU has given quotas codification process. totalling 4400 ton of raw sugar to Nepal and some other land-locked 240 J. R. Crook & S. C .McCaffrey, "The United Nations Start Work on a states have also received such a quota, which will be tremendously Watercourses Convention" (1997) in 91 AJIL, pp. 374 – 377. beneficial to them. For example, Nepal is making a profit of Rs 30 241 Ibid. million from this transaction and looking to increase such 242 Supra note 76, p. 237. arrangements in the future.

Equitable Utilisation / 179 180 / International Watercourses Law and Its Application in South Asia

Article 6 of the Rio Declaration asserts that special priority will be given to developing nations.247 Such concessionary arrangements for this group of nations from the donor agencies and the western nations are most essential.248 These notions should be implemented in a milieu where every player must come forward voluntarily rather than with compulsion.

The forthcoming chapter will focus on issues related to Nepal. The problems, prospects and way ahead will be analysed in the light of IWL in general, and in the context of bilateral and regional aspects in particular. The pertinent issues will be evaluated in order to explore avenues for the resolution of existing problems.

•

247 Principle 6 (Rio Conference) provides special concessions to developing countries. Similarly, principle 7 provided common but differentiated responsibility between poor and rich nations. 248 Supra note 115, pp .83-157; also see third UN Conference on the Least Developed Countries in Brussels at www.undp.org/mdg/goals8.pdf. For the eradication of poverty by the year 2015 in the above rank country’s targets have been set out. 180 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 181 Babai rivers originate in the midlands or Mahabharat range of mountains and are fed by precipitation as well as by ground Chapter- Four water regeneration. These rivers are also perennial but are characterised by a wide seasonal fluctuation in discharge. Apart Prospects and Problems of from these river systems, there are large numbers of small Nepalese Water Resources rivers in the Terai, which originate from the Southern Siwalik range of hills, and are seasonal with little flow during the dry season, but are characterised by flash floods during the 4.1 Introduction monsoon. Most of the rivers originate from the Himalayan range within Nepal, while some originate from the Tibetan Nepal is a landlocked country surrounded on the south, east and Plateau; all these rivers drain southwards to the Ganges4 in west by India and on the north side by Tibet (a region of Northern India and ultimately into the Bay of Bengal. The China), and comprising an area of 147,181 square kilometres. Mechi and Mahakali rivers form the eastern and western The country has three broad ecological zones consisting of 43% boundaries with India and the other rivers flow to India, being mountains, 30% hills and 27% plains.1 Her population is 25 transboundary in nature. The total average annual runoff into million, of whom 85% live in rural areas and 42% live below Nepal's rivers is estimated to be 200,000 million cubic metres the extreme poverty line. The Nepalese economy is based on originating from areas within the country; the catchment areas agriculture: about 90% of the people’s occupations depend on from Nepal alone make up about 45% of the long-term average it, and agriculture is largely rain-fed, due to the rugged, harsh annual flow of the Ganges basin and contribute over 70% of the and steep hills; only one sixth of the total land area is suitable Ganges flow during the driest months.5 for cultivation, of which about 41% is irrigated.2 With regard to climate, Nepal lies just beyond the northern There are about 6000 rivers and rivulets in Nepal, having a total limit of the tropic. There is a very wide range of climate, from drainage area of 194,471 square kilometres, 45.7% of which the summer tropical heat and humidity of the Terai to the colder lies in Nepal. There are 33 rivers whose drainage area exceeds dry continental climate in the middle, and the alpine winter 1000 sq km. Rivers in Nepal can be typically classified in three climate throughout the northern mountainous region. The types depending on their discharge. The Kosi, Gandaki, Karnali amount of precipitation and the temperature range vary and Mahakali river systems originate in the Himalayas and considerably because of the exceptionally rugged terrain, and carry snow-fed flows with significant discharge even in the dry large variations in altitude.6 Nepal has two rainy seasons: one season.3 The Mechi, Karnali, Kamala, Bagmati, West Rapti and from June to September when the south-west monsoon brings about 80% of the total annual rainfall, and the other in winter, accounting for the rest of the rainfall. About 64% of the rainfall 1 S. N. Bastola, Water Resources Development of Mighty Himalayan Rivers, Kathmandu: Sunil Bastola, 1994, p. 61. 2 His Majesty's Government, Water and Energy Commission Secretariat, 4 P. Shumsher J. B .Rana, “Nepal-India Relations: Water Resources” in (HMG/N-WECS) Water Resources Strategy Nepal, Kathmandu, L. R. Baral (ed), Looking to the Future: Indo-Nepal Relations in WECS, (2002), p. 14. Perspective, New Delhi: Anamol Pub., 1996, pp. 206-212. 3 Ministry of Water Resources, HMG/N (MOWR), Waters Resources 5 Ibid. Development in Nepal, Kathmandu: 1985, p. 1. 6 Supra note 2. 182 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 183 immediately becomes surface runoff; out of the remaining 36%, access to safe water, and only 42% of the net calculated land some is retained in the form of snow and ice in the high has been irrigated so far.11 Himalayas, while some percolates through the ground as snow and groundwater, and some is lost by evaporation and This chapter aims to discuss and analyse the abundance of the transpiration. The water retained in the form of snow feeds the water resources in Nepal, their significance for the country’s rivers during the dry season.7 socio-economic development, and associated legal issues from the perspective of IWL. Furthermore, issues inextricably The available hydrological data reveals the estimated annual intertwined with the transboundary freshwater resources, runoff into the rivers of Nepal to be 220 billion cubic metres, (ranging across hydrological, geographical, political, socio- with the average annual precipitation being 1530 mm per year.8 economic, and technical fields) will also be dealt with in the The influence of heavy rain during the monsoon causes wide light of existing legal principles and practices. The issues of fluctuations in river flow, land erosion and landslides, which is bilateral Indo-Nepal co-operation and of regional cooperation aggravated by the extreme topographic relief and fragile with Bangladesh and Bhutan will also be covered, with a focus geological construction of the country. These factors cause the on water resource issues. These issues will be critically rivers to carry high sediment loads during high flows. analysed in the light of the previous chapter’s discussion of Moreover, the snow and glacier melt also brings heavy loads of equity sediment during summer months, which is considered an important factor determining the extent of water-related hazards 4.2 Potential for Nepalese Watercourses 9 in the downstream territory. Nepal is endowed with immense water resource’s potential, Nepal possesses energy in the form of hydropower and which, if utilised properly would be a boon both for herself and firewood; no other energy resources have been discovered in for countries further downstream. The benefits could be applied significant quantities (e.g. coal, oil, gas). Hydropower offers to several spheres, namely hydropower generation, the huge potential, but so far only 20% of the population have extension of irrigation facilities, and particularly navigation, access to electricity. Several studies suggest that Nepal which is crucial for the landlocked countries of Nepal and theoretically has 83000 MW of hydropower potential, more Bhutan and the north-eastern states of India, which could than the combined total produced by the United States, Canada access the sea via Bangladeshi territory. Moreover, flood and Mexico, of which about 43000 MW is presently considered control, industrial, recreational and other benefits are 10 economically viable to harness. Despite the abundance of possible.12 However, the reality is that in order to gain water resources, only about one third of the population has got maximum benefits, such transboundary resources should be developed in a holistic and integrated manner ignoring national barriers. This is because, due to the nature of these rivers and of 7 Ibid. 8 C.K. Sharma, A Treatise on Water Resources of Nepal, Kathmandu: the geography of the area, the optimum site for the barrage (a Sangita Sharma, 1999, p. 33. 9 C. P. Sinha, "Sediment Management; A Co-operative Indo-Nepal 11 Supra note 2. pp. 13-14. Ventures" (1994) in 4 Water Nepal, pp. 158-163. 12 B. Crow, A. Lindquist & D. Wilson, Sharing the Ganges: The Politics 10 S. P. Subedi, “Hydro-Diplomacy in South Asia: The Conclusion of the and Technology of River Development, New Delhi: Saga Pub., 1995, Mahakali and Ganges River Treaties” (1999) in 93 AJIL, p. 954. pp. 218-237. 184 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 185 structure for storing water) might be in one state (e.g. Nepal), national interest at the cost of those of other states, and to the benefits could be accrued in other states (e.g. India and attempt to maximise their own advantage whilst ignoring the Bangladesh), and such benefits could be shared by yet more needs of others. Weak and vulnerable states are always the states.13 The principle of equity can dictate how this may be losers, because of their lesser capability in the diplomatic, properly resolved. strategic, economic and other spheres. Good examples are the construction of the Farakka Barrage by India, the Aswan Dam It has been proved in several parts of the world that basin-wide by Egypt and the Three Gorges Dam currently underway in development of water resources could provide immense China;18 all of these projects are obviously against the letter and benefits to all riparian nations/states, e.g. the Tennessee Valley spirit of IWL. No state or organisation was actually able to stop Authority (USA), the Damodar Valley Corporation (India), the this kind of illegal construction. At the same time weaker Amazon (Latin America), the Columbia (USA-Canada), the nations, such as Nepal, Bangladesh and Ethiopia, are prohibited Mekong (four states of southeast Asia), and likewise many from enjoying equitable utilisation of their own resources due other IWC’s in various locations. This is so not only for to the complications of IWL, a problem which will be analysed technical reasons, below. As to the relationship that India has had with Nepal and however, but also for a multiplicity of socio-economic, legal, with Bangladesh in the sphere of water resources, its nature has political and other inextricably linked reasons. The concept of not always been friendly or even satisfactory, when considering ‘drainage basin’14 or ‘watercourse’15 has been developed for the Sarada, Kosi and Gandak projects in the former case, and these reasons, as has the concept that a watercourse should be the Farakka Barrage in the latter.19 However, by considering regarded as a single unit regardless of political borders.16 In the these issues in the light of the concept of equity in water bilateral sphere, the successful and renowned model of co- resource utilisation, the divergent interests of all riparian states operation between the USA and Canada in regard to the can be addressed, thus enhancing the prospects of constructive Columbia River Treaty has been repeatedly put forward as one and meaningful co-operation in the future. basis for other such co-operative models. Hence, Indo-Nepal water resources offer opportunities and challenges for overall The case of Nepalese water resource development is unique in development.17 comparison with the circumstances in other countries; Nepal has huge water resources available with a tiny land area From past experience in south Asia, the states concerned only requiring irrigation and a very low demand for hydroelectricity. become involved in order to protect and preserve their own Conversely, India has got a huge territory but sufficient water is not available during the dry season, either for herself or for 13 D. Gyawali, “Himalayan Waters; Between Euphoric Dreams and Bangladesh. However, development of these resources could be Ground Realities” in K. Bahadur & M. P. Lama (eds), New undertaken for the benefit of the region, for which co-operation Perspectives on India-Nepal Relations, New Delhi: Har-Ananda Pub., among the nations of south Asia is essential. On the contrary, 1995, p. 256. the demand for water, particularly in the dry season in 14 Article 1 Helsinki Rules in Report of the ILA, (1966), pp. 484-485. 15 Article 1 of the UNCIW, 36 ILM, (1997), p. 721. downstream countries is acute, meaning that a regulated flow of 16 H. A. Smith, The Economic Use of International Rivers, London: P.S. King & Son, 1931, p. 121. 18 www.internationalwaterlaw.org “China completes Three Georges 17 B. C. Upreti , Politics of Himalayan River Waters, New Delhi: Nirala Dam.” Pub., 1993, pp. 84-88. 19 Supra note 17, pp. 106-115. 186 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 187 water during the dry season, hydroelectric power, and flood project (2800 MW), and apart from these India’s strategy to control during the wet season, are absolutely essential divert the Brahamputra into any or all of the Torsa, Raidak, the requirements to India and Bangladesh.20 Sunkosh and Manes rivers in Bhutan, schemes which are under discussion.24 Due to the income of Chukha I, a 336 MW Besides this, fundamental benefits could accrue to Nepal as project, and other projects in the pipeline, Bhutan is emerging well, in particular from co-operation over navigational as one of the wealthiest nations, in terms of per capita income, facilities, giving access to and from the sea, an essential in south Asia.25 Such cooperative arrangement for the mutual requirement so that Nepal can diversify her trade in a more benefits of India and Nepal is the need of the hour and from competitive way.21 Nepal had repeatedly called for such access, such cooperation other nation also could benefit. which she is entitled to by international law, but of which she has been deprived. In order to maximise the benefits, an 4. 3 History of Water Resource Development: integrated and holistic approach needs to be undertaken in Indo-Nepal Relations Nepal, for example in watershed management, and afforestation in the Siwalik and the hills of the Himalayas, which would Nepal's water resource development dates back to the Exchange significantly reduce the silt and sediment that causes of Letters of 1920 with the then British Government in India tremendous loss and damage to territory downstream. As a 22 regarding the construction and operation of the Sarada Barrage result of this approach, all nations involved would benefit. An Project. This was the first international agreement in the example of this is the Indo-Bhutan co-operation in the Chukha 26 23 subcontinent in modern time. Through the Exchange of project, which enormously benefited both nations. Letters of 1920, Nepal agreed to transfer 4093.88 acres of her Additionally, there are several projects under review for land on the east bank of the Mahakali river to India so that implementation. Primarily, these are the hydroelectric projects: India could build the Sarada Barrage across the river to regulate (1,020 MW) the Tala Project on the Wangchu downstream of the waters for irrigation. In exchange for the land, Nepal Chukha, the Chukha II, the Sunkosh High Dam Project (1525 received an equal amount of land elsewhere. In addition, India MW), the Chukha III (900 MW) and the Mannes High Dam agreed to provide Nepal with a supply of 460 cusses of water and, provided the surplus was available, a supply of up to 1000 20 B. G. Vergeese & R. R. Iyer (eds), Harnessing the Eastern Himalayan cusses from the Sarada canal should cultivation expand at any Rivers: Regional Co-operation in South Asia, New Delhi: Konark 27 Pub., 1994, p. 267. time in the future. This project was initially undertaken to 21 C. K. Sharma, Water and Energy Resources of the Himalayan Block, provide irrigation facilities in the Indian state of Uttar Pradesh Kathmandu: Sangita Sharma, 1983, p. 377. 22 B. G. Vergeese, Waters of Hope, New Delhi: Oxford & IBH Pub., 24 B. Subba, “Tapping Himalayan Water Resources: Problems, 1990, p. 347. Opportunities and Prospects from a Bhutanese Perspective” (1994) in 4 23 Supra note 17. pp 199-200: the 336 MW hydropower project jointly Water Nepal, p. 210; also see R. S. Kharat, Bhutan in SAARC: Role of undertaken by means of Indo-Bhutan co-operation provides a good a Smaller State in a Regional Alliance, New Delhi: South Asian Pub., example, in which India provided 40% of the project cost as assistance 1999, pp. 97-99. to Bhutan and the remaining 60% as an investment on 50/50 ownership 25 B. Subba, Himalayan Waters, Katmandu: Panos south Asia, 2001, p. of the joint investment project. The electricity generated is being 204. exported to India as a result of which a huge amount of money, 40 26 N. D. Gulhati, Development of Inter-State Rivers: Law and Practices crore annually, has accrued to Bhutan as revenue from which her in India, New Delhi: Allied Pub., 1982, p. 166. economy has benefited. 27 Supra note 20, p. 201. 188 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 189 (UP) at her own cost and initiative, and so it was natural for sell out of national property for India’s benefits and that India to accrue benefits for herself. However, an assessment of nothing had been obtained for Nepal in return for a huge the treaty provisions seems to indicate that much of the benefits expenditure of resources. Political unrest and general went to India inequitably, since Nepal swapped its own resentment within Nepal resulted from this outcry. Eventually, territory with India to make this project feasible; such India agreed to reconsider,31 and the revised agreement in arrangements are rarely encountered in international water case which some of Nepal’s concerns were accommodated was law elsewhere. signed on 19 December 1966. Thus, in view of the assurance of the then Indian Prime Minister Lal B. Sastri, Nepal agreed to Another water resource project involving Indo-Nepal co- resume work on the project. Pursuant to the revised agreement, operation, the first to be undertaken after the independence of some arrangements were changed to assure Nepal's32 benefit: India, was the Kosi Project Agreement, being a multipurpose • Any construction or other undertaking by India in scheme including hydropower generation (20,000 KW). connection with the Kosi Project was to be planned and However, a major component of the project was flood control carried out in consultation with the Nepalese and irrigation, the so-called "sorrow of Bihar"28, which Government. Nepal was to provide facilities to the annually caused tremendous loss of lives and property several Indian officials necessary for surveys and investigations times mainly in India, but also in Nepal. The project was inside the project area, for the maintenance and conceived and several studies were undertaken from 1946; operation of the project. however, by 1954 it was considered urgent to implement the • The land needed for construction works was to be project in order to eliminate and mitigate the recurrent and leased to the Indian government in return for devastating effect of the Kosi flood during the monsoon season. compensation payments. The Kosi scheme consisted of a canal system, flowing channels on both sides, a barrage across the river and a hydro station. • It was agreed that Nepal should have the right to The barrage consisted of 56 gates and was 3770 feet long. The withdraw water from the Kosi and its tributaries as and purpose of its construction of the barrage was to minimise the when required. erosion of soil and deposit of silt.29 For the project, • The Government of Nepal would be entitled to obtain embankments were constructed on both sides of the river from India, for use in Nepal, up to 50% of the total extending for about 130 km downstream almost up to the hydroelectric power generated by any powerhouse confluence of Kosi with the Ganges, to ensure flood protection situated within a ten-mile radius of the barrage site. of approximately 280,000 ha of land; a diversion structure was also built for a network of canals to provide irrigation to a total • The land acquired and leased to India, which was of 1,150,000 ha of land.30 However, the project was seriously initially given for an unlimited period, was now to be criticised at all levels in Nepal, the complaint being that it was a

28 Ibid. 31 Ibid. Also note that the Indian Power and Irrigation Minister, K. L. Rao 29 Ibid. pp 95-98; also see supra note 17, pp. 200-202. gave assurances that the Treaty would be revised in 1962-63 during his 30 T. Prasad, "Comprehensive Water Resources Development in Indo- visit to Nepal and in 1965 during the visit of Prime Minister Lal B. Nepal Region: Perspectives and Prospects” presented at a conference Sastri visit this was again assured, supra note 17, pp. 100-101. on Large Scale Water Management held in Kathmandu, 1997, p. 18. 32 Ibid. pp. 100-102. 190 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 191 given for 199 years, during which sovereign rights and Utilising the head available on the main western canal, a territorial jurisdiction would be retained by Nepal.33 hydropower plant of 15 MW was also provided for in the project as a secondary benefit.36 The fate of this agreement was From the legal viewpoint, significant changes were made in the also similar to that of the Kosi agreement: it was heavily agreement, such as the right to divert water from the tributaries, criticised by Nepali politicians. Subsequently both parties Nepal’s involvement in the project implementation, and, less agreed to revise this agreement; after its revision, some more beneficially, the lease for land prescribed for 199 years. Despite benefits were given to Nepal. Nonetheless, in relation to the this, even after the revised agreement and its execution, the criticism, it has also been argued that in those projects India has original intention to bring these benefits to Nepal has not fully invested a huge amount of money, manpower and technology, materialised. The Chatra Inundation Canal which was proposed and that it is therefore natural that she should accrue more to irrigate 66,000 ha of land in Nepal, has in the event only led benefits than Nepal.37 To some extent, the argument is valid; to the irrigation of 10,000 ha. Moreover, it was felt that however, Nepal’s interests cannot be ignored entirely. irrigation and flood control benefits to Nepal from the project would have been greater had the barrage site been located The road bridge constructed under this project, for which Nepal further upstream at Barahkesthra, as initially designed, but was assured of a locking arrangement for facility of riverine which was later changed to the Indo-Nepal border point.34 It traffic across the barrage free of any tolls, has proved to be a has been argued that in order to take maximum benefits from provision that has so far remained mere theory, as no inland Nepal’s water resources, India had applied pressure and used water navigation was developed. The other fundamental bargaining tactics, constantly pushing Nepal to agree on the recognitions of Nepal’s rights which were accorded enabled her Kosi project for the period of 199 years, in exchange for a trade to make upstream withdrawals. In the view of many Nepalese, and transit treaty renewable every 5 years (something Nepal was again cheated and exploited. Sharma, a prominent unprecedented in world history), whereas the life of a water geologist, maintained that: resources project is normally considered to be 50 years.35 The Gandak Project Agreement (1959) is the third agreement "…had Nepal been economically strong, it would that was constructed to bring India benefits, i.e. flood control, have constructed the entire system and sold the irrigation and hydropower. On the Gandak, a barrage was benefit at a fair price to India by utilising her constructed on a reach of the river, which forms the boundary terrain as a resources site…".38 between India and Nepal. The project was to provide irrigation Nepal’s concern and objections are understandable, as the to a gross command area of 1,340,000 ha in Bihar, 500,000 ha promises made in these treaties were never fulfilled by India; in Uttar Pradesh (both Indian States), and 63,000 ha in Nepal. for example the Chatara canal under the Kosi agreement, which remains defunct and which Nepal had to renovate with an IDA loan after she took over its operation in 1976, and the 33 II YBILC 1974, p.p. 102-103. In the revised agreements Clause 1, 2, 3, navigation facility as stipulated in the Gandak agreement, 4 (I & II), 5, 10 & 15 were amended. 34 B. G. Verghese, R. R. Iyer, P.K. Ahamad, B. B. Pradhan & S.K. Malla which was never undertaken. Similarly, the hydro generation (eds), Converting Water Into Wealth: Regional Co-operation in Harnessing the Eastern Himalayan Rivers, New-Delhi: Konark Pub., 36 Supra note 17, pp. 102-108. 1994, pp. 31-33. 37 Ibid. p. 107. 35 Supra note 8, p. 259. 38 Supra note 21, p. 280. 192 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 193 from the Kosi project was never carried out. Furthermore, India A fourth treaty is the 1996 Treaty concerning the Integrated objected to Nepalese projects such as the Kanakai Multipurpose Development of the Mahakali River Including Sarada Barrage, Project (38 MW) funded through Asian Development Bank Tanakpur Barrage and Pancheswar Project. This is the first assistance, the Maulghat 38 MW hydropower project, and the treaty to accommodate, in principle, the interests of both Sikta, Babai and Rapti irrigation projects, stating that they nations equitably. However, its execution has also been would affect its existing consumptive rights.39 On the other hindered and not as much progress has been made as was hand, India developed several irrigation projects, damming the expected during its conclusion. The Mahakali treaty includes rivers along the Nepal border without providing the requisite three components: the Sarada Barrage, the Tanakpur Barrage information; consequently these projects have submerged large and the Pancheshwar Project. The first two projects have part of Nepalese territory.40 Hence, these illegal activities already been executed by India at Mahakali on the Indo-Nepal caused significant harm to Nepal. Furthermore, the donors border at her own cost. For her contribution to the Tanakpur willing to lend money to Nepal to develop a water project Barrage, Nepal was provided with a supply of 1000 cusecs of required Indian consent, whilst in the case of India, they never water in the wet season and 300 cusecs in the dry season, and asked for Nepalese consent or even furnished any information an annual supply of 70 million kilowatt-hours of energy on a about the above projects.41 From a legal standpoint, Nepal’s continuous basis, free of cost. India is to construct the head entitlement to “equitable and reasonable use” has been regulator and the waterways as well as the transmission line up explicitly denied in these treaties, contrary to the principles of to the Nepal border. The waters of the Mahakali River from the Articles IV and V of the Helsinki Rules and Articles 5, 6 and 7 Sarada canal and from the Tanakpur Barrage have been of the UNCIW. For example, Nepal’s share of irrigation was incorporated in this treaty, replacing all such previous less than 3% of the total area watered by the Kosi and the agreements.43 However, the Mahakali treaty has not yet been Gandak Scheme.42 Nevertheless, from an academic and legal implemented and the criticism is made that the intention of point of view, one-sided criticism of these treaties does not India was never to execute the Pancheswar project, but rather to facilitate future development, and due credit should be given for ensure the continuity of the defunct Sarada benefits and legalise the fact that these agreements were carried out with sovereign the contentious Tanakpur project, which was constructed consent and incorporated subsequent amendments accordingly. entirely for Indian benefit, ignoring Nepal’s legitimate half- entitlement with respect to such a boundary river. Furthermore, 39 D. R. Pandey, Nepal’s Failed Development: Reflections on the Mission the constitution of a Mahakali Commission comprising an and the Maladies, Kathmandu: Nepal South Asia Centre, 1999, pp. equal number of members from each country, shall be guided 336- 340. 40 Supra note 22, pp. 340-341. by the principles of equality, mutual benefits and no harm to 41 Staff, “the World Bank discriminates us”, The Kathmandu Post 6, other party which would be responsible for implementing the 2002; stated that the World Bank had lent the money to the Indian state treaty, is vital. However, such commission has not yet been of Uttar Pradesh to develop an irrigation project but did not even constituted. provide notice to Nepal (this information was provided by S. N. Paudel in a seminar on 5/8/2002, “Riparian consent and the World Bank”, Kathmandu); on the other hand, it has sought Indian, Bangladeshi and The provisions of this treaty constitute the first time that, in a Chinese consent for lending money to a Power Development Fund in changing context, India is willing to join hands with Nepal in Nepal. Later, US $80 million fund was provided and no objections were made. 42 Supra note 25, pp. 192- 193. 43 36 ILM (1997) pp. 533-535; also see supra note 39, p. 336. 194 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 195 the development of water resources for the common benefit of recognised that the Mahakali is a boundary river on major her people, and according to the principles of equity. Those stretches, and to conclude a treaty on a boundary river on the principles were incorporated in the Mahakali treaty, which was basis of equal partnership, it has defined their obligations, able to accommodate the divergent needs and interests of both corresponding rights, and duties with regard to utilisation of the riparian nations. Nevertheless, due to disputes over the waters of the said river.45 interpretation of Article 3 of the said treaty, which provides for existing consumptive use, Nepal’s consumptive use has been It is argued that this treaty provides a false impression that the specifically defined in the treaty, whilst India’s consumptive two governments have taken a 'basin approach', because in use was not defined, and in the later stages was disputed (Nepal future the only project work which will be carried out is the recognised 248 cusecs while India argued for another 201 Pancheshwar Multipurpose Project (PMP); furthermore, other cusecs), against the spirit of the treaty. Thus, the finalisation of options are negligible, except the Pancheshwar Barrage.46 the Detailed Project Report (DPR) could not be agreed upon, Basically, the treaty establishes four main principles for design irrespective of numerous meetings held on several levels. It was and implementation of the PMP.47 The first principle is that the envisaged in the treaty that the DPR should be finalised within PMP will be designed to produce the maximum net benefits for six months of the ratification of the treaty; however, due to the both countries in the forms of power generation, irrigation use, position taken by both states, it seems that it may take eight and flood control. The second principle of the project is that it years to finalise the DPR, which demonstrates the complexities will be carried out in an integrated manner and the benefits will associated with it. be shared equally. The third principle is that both countries share the cost equally in proportion to the benefits accruing to It should be understood that early arrangements concerning the each. Finally the fourth principle is that a share of Nepal's sharing of the Mahakali river were carried out under the Sarada energy (half of the 6,480 MW) will be sold to India and its Barrage agreement of 1920, but that due to its possible non- price shall be mutually agreed upon between the parties based functioning, the river’s management was embodied in the on the avoided cost principle. Generally, avoided cost refers to Mahakali treaty which replaced it. Simultaneously, the second the replacement cost of alternatives (thermal or nuclear). This component was the Tanakpur Barrage, which must be obviously sets the maximum price of the cost of generation and considered separately; however, the treaty provides transmission to the Indian border. A compromise suggested by arrangements in relation to the sharing and allocation of its Nepal as a fair price is the sum of India’s current thermal benefit. Thus, the Mahakali river is to be developed in an replacement cost and Karnali’s generation cost, divided by integrated manner so as to maximise the total net benefit from two.48 such development. Either party should be entitled to equal benefits and will thus share the costs in proportion to the share 45 S. M. A. Salman & K. Uprety, "Hydro Politics in South-Asia: A of benefit which they actually receive.44 The treaty has Comparative Analysis of the Mahakali and the Ganges Treaties" (1999) in 39 NRJ, p. 313; also see S. M. A. Salman & K. Uprety, Conflict and Cooperation on South Asia’s International Rivers: A 44 F. Marty, “The Pancheshwar Multipurpose Project on the Mahakali Legal Perspective, the Hague: Kluwer Law, 2003, pp. 101-118. River (India-Nepal)” in P. Lang, (ed), Managing International Rivers: 46 Article 3, 36 ILM, (1997), p. 537. Problems, Politics and Institutions, Bern, European Academic Pub., 47 Ibid. p. 533. 2001, pp. 161-219; also see A. B. Thapa, “Pancheshwar Project 48 D. Gyawali, Water in Nepal, Kathmandu: Himal Books, 2001, pp. 53- Downstream Benefits” (2003) in 23 Spotlight, July 11-17, pp. 1-3. 65. 196 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 197 However, it has been argued that the treaty has attempted to wrangling over the definition of consumptive use. However, follow a model based on the principle of 'equitable utilisation' Article V of the Helsinki Rules and Article 6 of the UNCIW, and 'no harm' principles.49 Nonetheless, whether these concepts both state that existing use is only one of the factors to be are genuinely embodied is not clear, due to the ambiguity considered in determining whether or not any specific use is reflected in Articles 3 and 5 (1) as well as paragraphs 3 and 6 of equitable. Thus it seems, however, that the emphasis on the exchange of letters of the Mahakali treaty. The contentious defining much quantum of water in terms of consumptive use part is the wording of 'respective consumptive use of the waters may not serve India’s interests as well as might have been of the Mahakali River' without actually specifying the nature of thought. the use. In the meantime the exchange of letters (exchange of letters with this treaty), in paragraph 3 (b), contains some The author had an opportunity to work as a member of a restrictions as to the notion of equal entitlement, stating that: Nepalese delegation to India in 1997 and 1998. In the negotiations, Indian insistence on maintaining the existing “it is understood that Paragraph 3 of Article 3 of the volume of water use at and beyond 160 km within her Mahakali Treaty precludes the claim, in any form, territories was considered an illegitimate argument from the by either party on the unutilized portion of the standpoint of IWL, and Nepal has asserted this view.51 For shares of the waters of the Mahakali River of that instance, 160 kilometres down from the Indo-Nepal border, Party without affecting the provision of the India had diverted waters from the same river through an withdrawal of the respective shares of the waters of auxiliary canal, for which they (Indian) are claiming all existing the Mahakali River by each party under this consumptive use, and expecting Nepal to recognise this. This is Treaty”. questionable from a legal and political pointview. Nepal cannot be expected to negotiate over issues so far from her border, These provisions do not guarantee that equal entitlement of within Indian territory, which is not part of the main Sarada water, from a Nepalese standpoint, should be half of the total canal, and could never raise the issues in time for the use for each country. The term “existing consumptive use” is a conclusion of this (Mahakali) treaty. On the contrary India was key phrase adding to the confusion, whereas Article 5.1, which always raising the level of the aforementioned consumptive states that the “water requirements of Nepal are to be given use, which Nepal has not debated; the dispute is about 201 prime consideration”, contradicts the other provisions and cusecs of water.52 The argument put forward by India creates ambiguity. It is obvious that India's consumptive use is pertaining to the existing use 160 km below the border is higher than Nepal’s which may impact on Nepal's plans to tantamount to supporting the absurd proposition that because forgo part of her water entitlement in return for bearing a the Farakka diversion of about 44,000 cusecs (although not for proportionately lower share of the costs of non-hydro the purpose of consumptive use) constitutes the consumptive components.50 That is to say, the treaty provides that the cost of use since 1975, that too must be guaranteed by Nepal. the project will be shared proportionately to the benefits; if India is able to define maximum existing use, the remaining water use cost will be lower; this is the obvious reason for the 51 Nepal has insisted that she cannot negotiate with the resource which is 49 Supra note 45, p. 111. not in her jurisdiction or sovereignty. 50 Supra note 44, pp. 322-323. 52 Supra note 10 p. 957. 198 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 199 However, it can be concluded that the water resources of Nepal, was later decided by the US Supreme Court, invoking the which are of bountiful proportions and have great potential, if equitable apportionment principle.56 developed in a holistic, integrated way, with a regional perspective, could lead to the entire region, including Nepal, In the international arena, the Nile treaty of 1929 was annulled becoming as Kuwait is to the Middle East, with water being, as by Sudan and a new treaty was concluded in 1959.57 However, it were, the oil. This notion is widely believed in the region. Hungarian termination of a 1977 treaty with Czechoslovakia The other point is that if the former treaties, as described above, pertaining to the sharing of benefits from the Danube river do not address Nepal’s interests, or are not being implemented waters was declared illegal by the ICJ.58 Similarly, Pakistan has as per the treaty provisions, they should be renegotiated for unilaterally repudiated the May 4, 1948 agreement with India, their better implementation, or otherwise abrogated. If they are regarding the payment of compensation for obtaining a against the principles of the UNCIW and Article 64 of the continued flow of waters from the former, stating that this Vienna Convention on the Law of Treaties 1969, such treaties agreement was concluded under such compulsion that it could can be abrogated or may be declared to have automatically not refused.59 From the viewpoint of international law, it is come to an end.53 There are several examples of this kind of demonstrated above that if an agreement is not serving the abrogation, renegotiation and conclusion of new treaties in the interest of one party, due to changed circumstances or in other international arena as well as in interstate practice. For similar situations there is a way out, enabling the negotiation example, the Indian state of Punjab’s Legislative Assembly for a new agreement or the revising of an existing one. repudiated a 1981 agreement with Haryana on April 23 1982, Furthermore, from the viewpoint of Convention on the Law of stating that it did not safeguard its interests; as a result the the Treaties every state has a right to protect and preserve its Ravi-Beas Waters Tribunal (Erdi Tribunal) was constituted by own interest; for example if a treaty is not beneficial, it can be the Indian federal government.54 In another state, the Jammu exchanged for a new one.60 But it should be understood that and Kashmir Legislative Assembly also asked the Indian without bilateral agreement, replacement, amendment and government to abrogate the 1960 Indus Treaty because it did change of a treaty is not possible. Any arrangement can be done not protect its interests properly and fairly. However, this in bilateral consent and agreement except in unique request was denied by the latter.55 In the USA, the state of circumstance for example, the impossibility of performance of Arizona did not ratify the Colorado River Compact which it the treaty or the occurrence of a fundamental change of had negotiated and to which it had agreed to be a party; the case circumstances or the material breach of the treaty etc. However,

56 F. J. Trelease, “Arizona Versus California: Allocation of Water Resources to People, States and Nations” in P. B. Kurland (ed), Supreme Court Review, Chicago: 1963, pp. 158-205. 57 II YBILC (1974), p. 65. 53 8 ILM (1969), p. 679; also see M. Patker, “Review all Unequal Indo- 58 37 ILM (1998), pp. 162-202. Nepal Water Treaties” in the Kathmandu Post, 11 December 2002: A 59 R. K. Baxter, “The Indus Basin” in A. Garretson, et al (eds), The Law argument to renegotiate all treaties between Nepal and India. of International Drainage Basins, New York: Oceana Pub., 1967, pp. 54 B. R. Chauhan, Settlement of International and Inter State Water 456-457; also see L. Caflisch, “Unequal Treaties” (1992) in 35 GYBIL, Disputes in India, Bombay: N. M. Tripathi Ltd., 1992, p. 284. pp. 520-80. 55 M. Paukert, “The Indus Umbilical” in Himal South Asian, July (2002), 60 Articles 39, & 54 of the Vienna Convention on the Law of Treaties, 8 pp. 1-4. ILM (1969), pp.694 & 699. 200 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 201 it is not the area of this research. Article 3 of the UNCIW a separate transit treaty of unlimited period.64 India virtually suggests that state may adjust and harmonize existing imposed an economic blockade in 1989 by closing all but two agreements and Article 3 (1) suggests that states should enter of the 21 trade routes, and 13 of the 15 transit routes already into new agreements in which they can adjust the provisions of used by Nepal to carry out her international trade under the the convention. As argued by Caflisch, this provides states with 1978 transit treaty. It is worth mentioning that March 1989 was complete freedom in the matter.61 the time when Nepal's 1978 trade and transit treaty was about to expire; the preparations for the signing of the new trade 4. 4 Bilateral Relations with India treaty were almost ready, and it was awaiting formal signing by the ministers of the two countries when renewal of the treaty The nature of Indo-Nepal relations is unique, there being no was unexpectedly refused by India only days before the comparable relationship between any two other nations.62 appointed date. Nepal is between the giant states of Asia, described perfectly by the late King Prithivi Narayan Shah, the Great, as “a yam The reasons advanced by India for its reluctance were 65 between two boulders.” The Himalayas have since the time of fivefold: the introduction of a work permit scheme for Indians the British Raj, been regarded as a second frontier under the seeking employment in Nepal; the alleged mistreatment by “Himalayan Frontier Policy” and used to keep Nepal within the Nepal of Indians living in Nepal; the non-withdrawal by Nepal sphere of influence of India. For these reasons, India has used a of additional tariffs imposed on Indian goods; the import of variety of measures, including the granting of transit facilities certain weapons by Nepal from China in June 1988; and the (the provision of services and facilities to export and import alleged lack of Nepal's whole-hearted co-operation in business through her territory, and free access to and from the controlling the unauthorised trade between the two countries. sea) as a political tool and as leverage, to ensure that Nepal Nepal had explicitly rejected these allegations as baseless and remains within the broader Indian security framework.63 pointed out that India's action in regard to economic blockades and her reluctance to continue the utilisation of existing trade At times the special relationship has deteriorated and serious and transit facilities, curtailing 21 trade routes to two and conflict has arisen, particularly during the trade and transit closing 13 out of 15 transit routes, was a blatant violation of 66 impasse in 1989. It is evident that India always emphasised a customary international law. The conflict continued for over a single trade and transit treaty, disregarding Nepal's demand for year, but after the change of the political system in 1990, when

64 Ibid. pp 220-241: in Indo-Nepal bilateral relations, it was only in 1978 61 L. Caflisch, “Regulation of the Uses of International Waterways: The that India agreed to a separate transit treaty for a 10 year period, which Contribution of the United Nations” in M. I. Galssener (ed), United expired in 1988; at the last moment India rejected the continuation of Nations at Work, Westport, CT: Praeger, 1998, pp. 1-26. the earlier arrangement, alleging that Nepal was not complying with 62 S. D. Muni, Foreign Policy of Nepal, New Delhi: National Pub., 1973, the provisions of the 1950 Peace and Friendship Treaty and its p. 67-96; also see S. D. Muni, India and Nepal: A Changing subsequent Letters of Exchange. Relationship, New Delhi: Konark Pub., 1995, pp. 31-60. 65 S. Subedi, “Transit Arrangement Between Nepal and India: A Study in 63 S. P. Subedi, "Indo-Nepal Relations: the Causes of Conflict and Their International Law” (1997) in D. Hodder, S. J. Lloyd and K. McLachlan Resolution" in S. K. Mitra and D. Rothermund (ed), Legitimacy and (eds), 2 Geopolitics and International Boundaries, London: Frank Conflict in South-Asia, New Delhi: South Asia Institute, Manohar Cass, p. 175. Pub., 1997, pp. 220. 66 Ibid. pp. 175-176. 202 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 203 a multi-party democracy was restored in Nepal, followed by the property ownership and participation in trade and commerce, installation of a new government, the two governments agreed free movement, and other privileges of a similar nature.70 to restore the status quo ante of April 1987 in matters of trade and transit.67 From several perspectives the treaty is defunct and outmoded, and Nepal has repeatedly requested its repeal and formulation To analyse and evaluate Indo-Nepal relations, a study of of a new one. It is understood that both governments agreed to several treaty arrangements is essential, enabling an devise the new treaty, and the work is proceeding at foreign understanding of the reality on the ground. There are three secretary level; however, expected progress has not been major bilateral instruments concluded by India and Nepal, achieved and it is alleged that this is due to India.71 The Indian supposedly to protect the former’s security concerns: the 1950 position about the 1950 treaty is that she insists on a Peace and Friendship Treaty, the 1965 Arms Assistance continuation of it, albeit with some modifications, if necessary, Agreement, and the 1990 Joint Communiqué. The background to accommodate Nepalese concerns. India claims that it would to the timing of the conclusion of each of these treaties is be detrimental to Nepal if the special relationship with her were interesting; on each occasion the Nepalese Government was to be abandoned, as economic, trade and transit relations could either in crisis or about to fall, or there was merely a caretaker thereby be devastated.72 Government in place. In principle and practice, such governments do not normally have the right to conclude a With regard to the 1990 Joint Communiqué, which restored the treaty of this kind, that is to say one which is vital and has far- status quo ante of the earlier trade and transit arrangement, reaching implications.68 It is considered that the conclusion of India succeeded in getting more concessions from a pain- each of these treaties was carried out despite the fact that there stricken Nepalese government, such as the removal of the work was no authority within the existing government, because in permit arrangements for Indian nationals working in Nepal, practice such agreements had been concluded in the hope of trade favours, the introduction of the concept of common rivers securing foreign support, either to remain in power or to win applying to water resources that belong to Nepal, the the forthcoming election. However, the 1950 Treaty of Peace accommodation of India’s security concerns, and so on.73 Nepal and Friendship, and the Exchange of Letters (on the same day), was equally responsible for agreeing to these provisions despite undermined Nepal's sovereignty and territorial integrity, stating the fact that restoration of the facility of access to and from the that the defence and security of Nepal would be dealt with sea is a right under customary international law and no jointly, and that arms and ammunitions should only be obtained 69 after giving prior notice to India. In regard to the economy and to commerce, each government was to treat citizens of the 70 Articles VI and VII of the treaty. other country as their own nationals, allowing them to 71 A. Mukariji, “Nepal is Destablization the Name of the Game?”, participate in the industrial and economic development of the Ayanjit Sen (ed), India’s Neighbour: Problems and Prospects ,New country, by granting them, on a reciprocal basis, rights to Delhi: Her-Anand Pub., 2001, p. 116. 72 K. Natawar Singh, “An Agenda for Talks with K. P Bhattarai” The Times of India, 7 June 1990. 73 Supra note 63, pp. 230-232; also see S. P. Subedi, “The United Nations 67 Supra note 63, p. 221. and the Trade Transit Problems of Land-Locked States” in M. I 68 Ibid. p. 222. Glassener (ed), The United Nations at Work, Westport, CT: Praeger, 69 Ibid. Article I of the treaty and paragraph 1 of the letter. 1998, pp. 134-160. 204 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 205 concession at all.74 However, the new transit treaty of 1991 introduced a permit system for Nepalese to enter Sikkim and endorsed the provisions of the1978 treaty, which diluted other parts of India. Hence the treaty has become defunct.77 Nepal’s right of access to and from the sea on the principle of Some of these charges have been denied by India. reciprocity, creating more trouble for Nepal in the need for further bargaining, a point which Subedi addresses as follows: On the positive side, M. Dubey, an eminent scholar and former

foreign secretary of the Government of India has recommended “But if a bilateral transit treaty concluded nearly that regarding the sharing of the benefits of natural resources ten years after the conclusion of LOSC still embodies the principle of reciprocity it could be with Nepal, he saw no problem; he argued that India alone regarded, from international legal point of view, as could provide funding for these water projects. He articulated disastrous.75 an idea concerning downstream benefit, using as an example the Dhiang Dam, which India claimed would bring down the Whilst other landlocked nations have been able to enjoy such flood level in India and Bangladesh by one metre, which leads rights for a long time, Nepal is still being asked for reciprocity, one to question how India can deny that dams in Nepal will which is just a bargaining ploy with a view to accruing Nepal’s also provide flood relief to her own territory. However, Dubey immense water resources. For instance Switzerland has access debated concerning the demand for abrogation of the 1950 to the sea via four countries, while Austria, Czechoslovakia, treaty and maintained it would mean devastating consequences 78 and Hungary each enjoy transit through two neighbouring for Nepal. states and Luxemburg enjoys transit facilities through Belgium. Furthermore, Switzerland has direct access from Basel to the The situation prevailing on the ground in Nepal must be North sea via the Rhine, while the Danube is an important understood at this juncture. The Nepalese leaders should not be means of transit for Austria and Hungary. Similarly, Paraguay forever seeking India’s blessing, which seems to be a basic is especially favoured, in that Asuncion is linked by the Parana- feature of Nepalese politicians, intent on protecting their own Paraguay river system to major ports at Buenos Aires and interests. They should rather formulate national consensus on Montevideo.76 Moreover, several instances of breaches of the major issues and the principle of non-reciprocity as embodied 1950 treaty by the Indian side have occurred, such as India’s in the Gujral Doctrine, which advocated good neighbourly failure to consult Nepal about the war with China in 1962, and relations with no reciprocal advantage from small neighbours, with Pakistan in 1965 and 1971. India deported some of the Nepalese permanently living in Assam and Meghalaya, and

74 Ibid. The Barcelona Convention and Statute on Freedom of Transit 77 His Majesty's Government, Nepal, Department of Printing and (1921), the High Convention (1958), The Convention on the Law of Communication 1989: India-Nepal facts and chronology of the Sea (1982) are the main instruments concerning Land-locked states. problem, p. 78; also see the then Nepalese Prime Minister K.N. Bista's 75 Supra note 65, p. 190; also see A. Sarup, “Transit Trade of Land- interview in The Rising Nepal, 25 June (1969). Locked Nepal” (1972), in 2 ICLQ, pp 277-306. 78 M. Dubey, "Some Reflection on Indo-Nepal Relations" in L. R. Baral 76 S. C. Vascianne, Land Locked and Geographically Disadvantaged (ed), Looking to the Future: Indo-Nepal Relations in Perspective, New States in International Law, Oxford: Oxford University, 1990, pp. 6-7. Delhi: Anmol Pub., 1996, pp. 47-58. 206 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 207 and can generate unprecedented goodwill and additional has stated that co-operation amongst riparian partners is the 82 economic benefits to Nepal.79 only answer for all south Asian societies.

4.5 Impact of Bilateral Relations in the Water Therefore, any sector’s relations can not be developed in isolation, rather they should form part and parcel of the entire Resources Sector gamut of relations. India’s diplomatic policy is to use everything as a bargaining point or a political tool to ensure that It is natural for sectoral issues to be influenced by the major she obtains maximum benefit from Nepalese water resources; political relations between the nations, and the whole gamut of from Nepal’s viewpoint, there are several issues that need to be Indo-Nepal relations has been influenced by political resolved, e.g., transit and trade issues, security concerns and relationships. India has time and again complained and asserted equitable utilisation of her IWC. Although some suggest, full implementation of the 1950 treaty, its related Letter of requiring in abrogating Nepal’s treaty relations with India, the Exchange, and the Arms Dealing Agreement of 1965. She has affirmed position of Nepal and they are advocated by the author explicitly expressed unhappiness and demanded the withdrawal is that whatever has been already agreed or concluded in earlier of work permits imposed on Indian nationals, elimination of treaty instruments should be properly implemented; her wish is anti-India activities from Nepal’s soil, and the protection of simply to attain equitable benefits from the resources available lives and property of Indian-origin people living in Nepal; in any new treaty arrangements. For this to be achieved, the furthermore she has pushed for most favourable treatment for attitude of India hitherto should be reversed.83 India’s trade and business, arguing against the imposition of 80 any type of tariff. Furthermore, Nepal has been required to It can be argued that to establish excellent relations with Nepal, employ Indian firms and consultants in any global tender India must first open-heartedly offer an unconditional transit carried out with donor co-operation, and rely upon them to treaty of unlimited period based on customary international law import arms, ammunition etc. and to regulate and execute and in line with other European landlocked countries enjoying Nepal’s foreign policy in harmony with their own wishes. This 81 such rights. It is worth noting here that Nepal's dream of access is against the Charter of the UN and is simply not possible for to the sea, only possible through India, has not yet materialised, an independent nation, because of her divergent needs, but rather has received a setback in March 1956, when India interests, and aspirations. As regards the problem of harnessing officially denounced the Barcelona Convention of 20 April the Himalayan Rivers, Verghese and Iyer, both Indian writers, 1921, and the Statute on the Regime of Navigable Waterways of International Concern, and further hampered navigation by 84 completing the Farakka Barrage project. Additionally, India 79 P. D. Kaushik, “Indo-Nepal Relations and Gujral Doctrine- Bouquets has been unwilling to consider any suggestion of a Nepal- and Brickbats” in India and Nepal: Big Power-Small Power Relations Bangladesh navigation link through the strategic Siliguri in South Asia, M. D. Dharmdasani (ed), New Delhi: South Asian Pub., corridor, which would be a milestone in facilitating Nepalese 2001, pp. 55-62; also see B. C. Upreti, Uneasy Friends: Readings on Indo-Nepal Relations, New Delhi: Kalinga Pub., 2001, p. 186. 80 Supra note 65, pp. 175-180. 81 D. J. Harris, Cases and Materials on International Law, London: 82 Supra note 20, p. 172. Sweet & Maxwell, 1998, Article 1 (2) & Article 2 of the Charter, p. 83 Supra note 61, pp. 120-133. 1048. 84 Supra note 21, p. 278. 208 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 209 trade and industry.85 Nepal exchanged land to facilitate the the augmentation of water flows in the dry season, hydropower, Sarada Project in 1920 and provided land to facilitate the irrigation and navigation facilities.88 The water talks between Tanakpur project; now it is India’s turn to provide this facility the two countries have always been dominated by their political on a reciprocal basis. Nepal’s view is that, instead of the relationship. Whenever the general atmosphere of political politicisation of these issues, they should be tackled as tools of relations between the two countries has not been encouraging, economic development. Even after the ratification of the the water talks have not yielded any result, but rather Mahakali Treaty, the Nepalese parliament issued a stricture intensified bitterness instead of enhancing progress. On the one against the spirit and letter of the treaty which tied the hands of hand, Nepal is very suspicious of India’s attitude, on the basis the government, preventing them from finalising the DPR and of past experience concerning Kosi and Gandak; on the other implementing the treaty pursuant to the treaty provisions.86 hand, India is alleging that Nepal is not really interested in Moreover, India has flatly refused to acknowledge these developing those vast resources for the mutual benefits of the strictures and is holding to the treaty arrangement.87 people of both countries.89

4. 6 Negotiations on Water Resources Projects There are several projects which have been identified for better co-operation; of these, the Karnali Multipurpose Project (KMP) In order to grasp the unique opportunities afforded by Nepalese is one of the biggest and most attractive, at 10,800 MW. The water resources, Nepal alone does not have the capacity two countries have been discussing this project for the last forty economically, technologically, or in skilled manpower, nor years and a number of feasibility studies and surveys have been even the consumer demand to absorb such huge benefits. On conducted. Apart from power generation, this project is the other hand, neither is India alone able to utilise those envisaged to control flood and sedimentation problems in the resources without meaningful co-operation from Nepal, Karnali river basin. From these studies, the project cost was $ 90 because Nepal offers an ideal location for project construction, 4.4 billion at 1989 prices. namely the Siwalik gorges of the Himalayan foothills; this site additionally enables construction of short transmission lines to 4. 7 Associated Multi-Disciplinary Complications an area where the need for hydropower is acute. Such a unique location offers tremendous benefits in mitigating flood hazards, There are interconnected issues which need to be resolved before initiating a water resource project. The completion of

85 Ibid. p. 136: an alternative is through a 16 kilometre long tunnel link any such project takes much time and investment, and several originating from the eastern part of Nepal, passing through India at a other issues must be dealt with simultaneously, including depth of 300 metres and coming out at the western border of environmental aspects, seismicity, socio-economics, Bangladesh; also see G. D. Shrestha, "Himalayan Water: Need for Positive Indo-Nepal Co-operation" (1994) in 4 Water Nepal, p. 272. 86 Stricture adopted by the parliament subsequent to ratification contains 88 Supra note 13, p. 256. five conditions of which the second directs the government not to 89 Supra note 21, p. 280, C. K. Sharma, an eminent scholar, has pointed recognise consumptive use of the second lower Sarada Project, and the out that "now the situation (after the Kosi and the Gandak agreements) third seeks to resolve the status of Mahakali River and also to resolve is such that no politician or bureaucrat will ever dare to stake his career the longstanding border issue in the Kalapani area. These instructions and fame on dealing with the sensitive issue of water resources, which were provided on 2054/4/12 Nepalese calendar date. involves the question of sharing between and among riparian states.” 87 Supra note 48, pp. 53-65. 90 Supra note 22, p. 344. 210 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 211 rehabilitation and resettlement. In the Nepalese scenario, the China.94 Furthermore, it has been established that even after first question which confronts the planner and policy maker is construction of these embankments, the havoc caused by who will purchase the electricity. India is the sole buyer so far flooding has not often been mitigated or reduced; on the and without her agreement Nepal cannot export to Bangladesh contrary, there has been tremendous loss of life and property or Pakistan. Evidently, other optional markets such as China, from the flood water draining from Nepal during the recent must be researched. The other issue is whether by building a rainy season. It is a proven fact that in Bihar the embankment dam in the upper riparian country, the flood problem can be contributed much more to flood damage than it did to any reduced and low water flow increased for irrigation benefit of protection, and during the peak flood period people actually the lower riparian country. The upper riparian state must be destroyed the so-called flood protection measures in order to paid by this beneficiary proportionately on the basis of benefits protect their lives and property.95 from the construction of a dam and basin management, similarly to the case of the Columbia River Treaty.91 It should 4.8 Problems and Prospects of Nepalese Water be noted that through building a dam, the upper riparian Resources country may obtain hydropower benefit, but will submerge her In Nepal, it is a known fact that the development of the country land and lose other wealth, flora, fauna, fish stocks, and depends upon the utilisation of her vast water resources, and biological diversity; there will also be a need for rehabilitation also upon tourism. It is also known that in the past, whatever and resettlement of the peoples etc. Moreover, after about fifty water projects were carried out in co-operation with India, years such sites will be unable to give benefits as a result of the Nepal did not adequately benefit. It was reported by one author, sedimentation, and any chance to reuse them is lost for ever.92 B. C. Upreti, that King Birendra of Nepal himself once

remarked that his country had been cheated by India in the case The position of the lower riparian country, however, will be of the Kosi and Gandak.96 In political elections in Nepal, water different to that of the upper riparian one; she will be more issues have always been a 'hot potato'. It was evident that after concerned about regulating and increasing low flow, about the conclusion of the Memorandum of Understanding (MOU) flood control, and about extra irrigation costs. For example, in in connection with the Tanakpur Barrage, the Nepali Congress the case of the KMP, India is refusing to share irrigation and Government became the target of much political criticism from flood control benefits, stating that she had already constructed a within Nepal. The dispute was referred to the Supreme Court, complete flood protection project along the Karnali by building which declared that the said MOU is a kind of treaty which and maintaining embankments on either side of the river at dealt with the sharing and allocation of national resources; huge cost.93 However, in practice, these embankments are not hence it falls within the provisions of the constitution of the able to eliminate or check flood damage in other than normal Kingdom of Nepal, 1990, Article 126, and needs to be ratified years; construction of reservoirs is more successful in accordingly.97 impounding flood waters, such as in the Yangtze River in

94 A.B. Thapa, “Kosi Floods” in 21 Spotlight, Nepal, September, (2002). 95 Supra note 48, pp. 87-135. 91 K. Prasad, “Priority and Institutional Development” (1994) in 4 Water 96 Supra note 17, p. 110. Nepal, p. 221. 97 Judgement of the Nepalese Supreme Court in the case of B. K Neupane 92 Supra note 21, p. 284. v. His Majesty's Government (8 May, 1995), Nepal, including the 93 Supra note 22, p. 345; also see supra note 21, p 284. Council of Minster and Ministry of Water Resources. 212 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 213 It is clearly envisaged in the Ninth (1997-2002) as well as the generated from the Kali Gandaki A project.102 However, the Tenth Plan (2003-2008) that both poverty eradication and major obstacle to Nepal’s export potential is the noncooperative infrastructure development will be accomplished by means of attitude of the buyer103 and the expense of electricity the effective and efficient utilisation of water resources. generation.104 If it cannot be harnessed at a competitive price, Furthermore, bilateral and regional co-operation will be the chances of export are nil. Private sector involvement may enhanced in order to achieve these goals; small and medium be required in order to achieve efficiency and competitive hydroelectric projects should be carried out to meet domestic targets.105 In the Nepalese context, the Independent Power needs, whereas mega-projects will be undertaken to export Producers (IPP) are generating around 100 MW of electricity power to the neighbouring countries with other downstream and the NEA, a governmental entity, has an expensive Power benefits being shared.98 The Nepalese government adopted Purchase Agreement (PPA), about 7 US Cents/kWh; such an policies and made laws in this context,99 and also adopted a exorbitant price would make it unable to use or export power. water resources strategy recently.100 The strategy sets out in Even Pakistan has paid the IPPs 6.5 US cents/kWh and is not detail the proposed use of these resources for poverty able to export to India at the same price. Therefore, the pricing alleviation and infrastructure development, by exporting policy needs to be reviewed.106 hydroelectricity from the mega projects, alongside domestic consumption from medium and small projects, and In the existing Nepalese energy situation, only 1% of total implementation of these resources in the spirit of bilateral as energy consumption comes from hydro-electric source, 68% well as regional co-operation.101 from wood fuel, 15% from agricultural residues, 8% from imported petroleum products and 8% from cow dung and coal. Under the existing arrangement between India and Nepal, up to Under these circumstances, in order to mitigate the adverse 100 MW of electric power may be traded (in either direction) between the two countries according to requirements. Nepal is 102 The MD of NEA set forth his plan of exporting 150 MW of willing to increase this figure to 150 MW, by including power hydropower to India; Staff, “NEA exporting electricity to India”, The Kathmandu Post, 16 August 2002; also see A. B. Thapa, “Uncertain Future” in 22 Spotlight, 14-20 March (2003). 103 “Nepal-India Power Trade”: while Nepal negotiated to sell her extra 98 His Majesty's Government, Nepal , The Ninth Plan, Kathmandu, 1998, electricity after the completion of the Kaligandaki A project, India pp. 89-92; also see N. K. Sharma, Planning and Development in Nepal offered Rs 2.50 per unit, which is far below the generation price and and the Tenth Plan, Kathmandu: Pairibi Pub., (Nepali version), 2003, also below the market rate in India. 22 Spotlight, March 21-27, (2003). p. 119. 104 Supra note 25, p. 179: the cost per KW of installing mini-hydro plants 99 Hydropower Development Policy (2049), Irrigation Policy (2060), varies from a low of around US $ 350 in Pakistan to a high of US $ Industrial Policy (2049), Foreign Investment and One Window Policy, 2,000 in Nepal; also see D. Gywali, “Himalayan Waters: Between (2049), Establishment of Power Development Fund from the World Euphoric Dreams and Ground Realities” in K. Bahadur & M. P. Lama Bank /HMG joint Fund, membership of MIGA and New York (eds), Nepal Perspectives on Indo-Nepal Relations, New Delhi: Har- Convention on Foreign Arbitration Award 1958. Anand Pub., 1995, p. 253; due to the international consultant and 100 Supra note 2, p. 36. contractor investment, Nepalese hydropower generation is four to five 101 Ibid. p. 115: from private sector involvement, the Khimti (60 MW) and times more expensive on a per KW basis than it is in India or Bhutan. the Bhotekosi (36 MW) projects were implemented; similarly, 105 Ibid. Indrawati (5 MW) has been developed and also west Seti (750 MW), 106 S. B. Pun, “The Evolving Role of the Public and Private Institutions in which is an export oriented project, has been in the implementation the Nepalese Power Sector” in Annual Report of Water and Energy stage. Commission Secretariat, (1999) pp 38-49. 214 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 215 impact on the environment and to improve the balance of years to come. On the contrary, it seems that she is constructing payments situation, development of hydropower is essential.107 dozens of such reservoirs and barrages beyond the border point, the back-up water of which will naturally submerge a huge Keeping all the above facts in view, together with the rising chunk of Nepalese territory. In essence, she never follows the demand for electricity in northern India due to rapid principle of ‘equitable utilisation’ and the ‘no harm rule’, industrialisation there, with an approximate deficit of 30,000 rather, she has always behaved against these norms, and also MW predicted for the year 2005, Nepal would benefit if against the existing trend currently adopted even in interstate hydropower could be generated and exported to the power- disputes within India.111 The Indian projects which were hungry regions of that country. In addition, by developing large constructed without giving information and notice as required export-oriented multipurpose projects such as Pancheshwar, by international law and practice are in obvious breach of Karnali, and Saptakosi, about 22,000 MW of electricity can be Articles 5-9 of the UNCIW. generated. Steps should be considered to enable the extraction of economic benefits from the export of power and the Several diplomatic initiatives were made by Nepal, and notes provision of irrigation and navigation facilities to India and were also sent to India. Furthermore, negotiations were held to Bangladesh.108 wipe out such illegal acts, but no tangible result has so far been achieved. Nevertheless, a different view of Indian’s position The truth about India is that she has utilised almost every drop seems to be reflected in a statement by the Indian State of of available water for irrigation, beyond the Nepal-India border, Bihar’s Water Resources Minister who is quoted as saying that by constructing huge reservoirs and systems of irrigation for whatever area was submerged due to the Gandak Barrage in networks, concerning which she has never provided Nepal with August 2002, the Indian government would pay compensation the requisite information. Such reservoirs have virtually to Nepalese farmers.112 submerged Nepalese land in several areas,109 namely Banke, Kapilvastu, Rapti, Dang, Rupandehi, Rautahat, Mahotari and Nepal has a maximum potential requirement to irrigate only 3.2 Mahendranagar. Except for taking a few mitigatory steps in million hectares, but has a far greater abundance of water some areas,110 she has neither compensated Nepal nor given available; whereas the downstream countries have large areas assurances that she will not repeat such harmful projects in the of land to irrigate, but only limited water available with which to do so.113 So far, India, being an economically advanced 107 Supra note 98, p. 498. country, has developed and used almost all feasible projects, 108 Ibid. p. 498-499. whilst Nepal still needs to use such waters, and is hindered 109 Supra note 39, p. 340. 110 Supra note 22: In relation to the submergence of the entire territory of 16 VDC in Banke from developing any projects due to Indian objections and non District, as an effect of the Laxmanpur barrage, both governments have undertaken co-operation. Whether or not it is justifiable in international mitigation efforts, such as constructing embankments in the affected areas. However, such work so far seems ineffective in averting or mitigating the inundation caused by the law, Nepal, the poorer country as the upper riparian state, is barrage. Also see staff, “the joint Standing Committee on Inundation Problems Fail to prohibited from utilising her own resources, whereas the lower resolve problems”, in the Kathmandu Post, 13 August, 2003, constituted by the Prime Ministers of both countries to resolve the flood problem, held a meeting recently in which Nepal proposed either the dismantling of the bunds or payment of sufficient 111 Supra note 52, pp. 313-316. compensation. This was refused by India and no resolution was agreed; rather, the Indian 112 Staff, “Nepal to receive compensation from India”, in The Katmandu side even refused to acknowledge the issue of inundation of huge areas of Nepalese territory, even after a site tour and the presentation of data on flood waters. In Rato and Post 12 August, 2002. Khando river embankments are being constructed in which India has provided money. 113 Supra note 1, p. 55. 216 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 217 riparian state has already utilised every drop of water. The decades. It is a proven fact that the environmental cost of situation can be equated with those of the Nile, the Euphrates, thermal power stations, especially those fuelled by coal, is not the Tigris, and the Jordan. Moreover, when the under-resourced properly calculated in this area; current concern with climate country wishes to develop a water project, she needs to take out change and global warming on account of accumulating a loan from the donors, who will not lend the money unless greenhouse gases in the atmosphere should dictate a greater they obtain a positive response from the other riparian state. dependence on renewable energy sources. Negative environmental effects could be reversed by the use of these The above is a clear instance of non co-operation; the clean energy sources, which must be taken into account. significance of bilateral or regional co-operation is well Unfortunately, efforts at the recent WSSD at Johannesburg to explained by Verghese, an eminent Indian scholar, who encourage the use and generation of renewable energy, and the asserted that delay is tantamount to denial: provision of such facilities to people who are not enjoying it, have not been adopted.116 "Nepal would be unwise to rehearse ancient grudges, some of them exaggerated, for little purpose and 4.9 Projects of Bilateral Interest India would do well to be less over-bearing on occasion and to deal with Nepal in a more relaxed 114 A. The Karnali (Chisapani) Project and understanding fashion". This project is the third biggest multipurpose water resources There is no basic conflict of interest between the two countries project in the world, with a 10,800 MW hydroelectric and India can afford to be generous in dealing with her small capacity.117 Furthermore, from it will come a huge neighbour. Any delays in developing Nepal's vast water resources are contrary to the Kingdom's own best interests, and augmentation in the amount of water, leading to flood control equally denies India the optimal way of developing her shared and increased water flow, alleviating the chronic Indo- water resources. Nepal's trade deficit with India could be more Bangladesh problem of poor dry-season flow. The two than offset by exporting electricity and the other benefits from countries have been discussing the Karnali Project for the last water to India in the first place and then, with the development forty years, and a number of feasibility studies have been of an international grid, to Bangladesh and Pakistan. Islamabad undertaken, the latest one by the joint American-Canadian firm, is no more distant from the Chisapani (Karnali) dam than the Himalayan Hydro Development Co-operation (HHDC), Kolkota from the proposed Dihang dam in Arunchal (a far east concluded in 1989. In the Karnali high dam project, the studies 115 Indian state). have led to 32 volumes of reports. After building a dam, it is estimated that the project will yield a profit of $ US 8 billion As to types of power station, the hydroelectric-thermal mix, which should ideally be around 40/60, has been allowed to swing towards thermal but must be restored over the next two 116 P. Brown & J. Vidal, “Summiteers plant their flags in the foothills”, Sept. 4, 2002, p. 13.The Guardian. 114 Supra note 22, p. 351. 117 The largest is the Three Gorges project in China 25,000 MW and the 115 Ibid. Also see South African Power Pool, common electricity for 14 second is the Itaipu project jointly developed by Brazil and Paraguay African states at www.eia.doe.gov/emev/cabs/sadc.html. 12,550 MW, see www.solar.coppe.ufrj.bu/itaipu.html. 218 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 219 within 30 years.118 Nepal has already spent a huge amount of problem and to cause less displacement of people.122 The money on these studies.119 A series of talks and negotiations Indian ideas remain unconvincing and seriously flawed from a between Nepal and India were held at a high level, and at a technical, legal and political point of view. The non- technical level as well. It is worth noting that India had implementation of the Karnali high dam, as observed by the reiterated its willingness to co-operate in the Karnali Project eminent scholar and former Foreign Minster of Nepal, Shah, and also agreed to purchase surplus energy generated from it. Subsequently, on 4 February 1983, India and Nepal agreed to "furnishes a classical example of how the inherent execute three major multipurpose projects: Karnali, weakness of a poor developing country renders it Pancheshwar and West Rapti; this was considered to be a major helpless in the end against the interplay of various forces represented by vested interest among the breakthrough in the field of bilateral co-operation in the water donor countries and international agencies for resources sector, but nothing was achieved because India financing. Nepal's much vaunted Karnali project refused to recognise some of the benefits recommended by the 120 remains still unimplemented in spite of four consultant, particularly from flood control and irrigation. favourable feasibility reports by internationally reputed consulting agencies over a period of more In addition to the above, the seventh meeting of the Karnali Co- than two decades.”123 ordination Committee (KCC), held in December 1988, showed serious differences over the sharing of the costs and benefits, B. The Sapta Kosi High Dam Project and other components of the project; consequently, no tangible agreements were possible.121 Many governments over the past In Sanskrit, this river is called the Kausika and is one of the fifteen years indicated great interest in the projects, and several largest tributaries of the Ganges. The Sapta Kosi river is the talks were held; for example, the HHDC reports were the biggest river basin in Nepal and is the third largest in Asia 124 subject of frequent discussion and a severe difference of (after the Indus and Brahmputra); it has seven tributaries, opinion emerged between the Nepali and Indian delegates. some of them originating in Tibet and others in the Himalayan belt by the Indo-China border. The catchment area is about India has expressed a preference for a lower dam at Chisapani 25,600 sq km; the basin extends about 270 km from northwest that might yield around 7000 MW of electricity, and at a reduced cost which would be easier to finance. She has 122 The main objection from the Indian side was that the project area was indicated two or three other upstream projects on the Karnali 20 miles within Nepalese territory and as such their control over so that could be taken up, which, it is argued, would be more large a base of power would be limited, and therefore security was inadequate. Whereas in Nepal, some went so far as to ask 'will Nepal beneficial, and needed in order to yield more energy. Moreover, own the Karnali, or the Karnali own Nepal because of the magnitude of a lower Karnali dam is also seen to pose less of a seismic the project and about Nepal’s capacity to handle it properly. Also see supra note 4, pp.209-210. 123 R. Shah, "Politics of Water Power in Nepal" (1994) in 4 Water Nepal, 118 Supra note 8 p. 328; also see supra note 20, p. 203. pp. 286-287. 119 Supra note 21 pp. 203-204. 124 Supra note. 21, pp. 48-50. Name of these tributary rivers are, the 120 Supra note 20, pp.203-204. Tamur, the Arun, the Sunkosi, the Tamakosi, the Dudhkosi, the 121 Supra note 22, p. 344. Bhotekosi, and the Indrawati. 220 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 221 to southweast and 145 km from northeast to southwest.125 The Erosion and floods in Nepal’s Himalayas have direct Kosi is a mighty and notorious river, which has caused consequences in India.128 Similar flood events took place tremendous loss of life and property in the past. There is recently (July-August 2002), after which the Chief Minister of evidence that nearly 200 years ago, this river flowed 120 km to the Indian state of Bihar blamed Nepal for aggravating the the west and joined with the Mahananda and Kankai. The situation, a charge flatly denied by Nepalese technicians.129 channel of the Kosi used to pass by Purnea, an eastern city in the Indian state of Bihar, but its present course is about 160 km The Kosi high dam is vital for the mitigation of devastation in to the west of Purnea, having moved over an area of 10,500 sq India and Bangladesh, and India is approaching the Global km, on which it has deposited silt and sand, also creating Infrastructure Research Foundation of Japan for finance to swampy conditions in the old abandoned channels.126 Due to implement it. If Nepal and India agree, it could be implemented the deposit of a huge quantity of sediment upstream, the Kosi under joint management, as was the case with the Itaipu, barrage has led to a raising of the river bed; it is suspected that Yecreta and Columbia River projects. If this project can be the barrage might be washed away or destroyed in the undertaken, it alone would provide effective flood foreseeable future. modernisation benefits as well as the irrigation of up to 500,000 ha in Nepal, even more in India, and 3,500 to 5,000 MW of There is another option for using this resource: the construction installed power capacity. Moreover, Bangladesh too can share of an east-west link canal up to Bangladesh’s Mahananda river. the benefits derived from it, in terms of flood cushioning, This is a Bangladeshi proposal, which would provide power imports through grid transfer, and augmented water in navigation to Nepal and sufficient water for Bangladesh, and the dry season. The Kosi dam is one of seven Himalayan represents an excellent offer which would provide the storage projects in Nepal that Bangladesh has been insisting on opportunity for an alternative route of access to the sea. India for some considerable time as an alternative means of was suspicious about it, stating it could be a nexus between the augmenting the dry season flow in the Ganges.130 It seems that two countries against her. In any event, it is not possible to the project will be started soon. implement this idea without India’s co-operation, and India will not yield on this matter, preferring to use it as a strong political 4.10 The Tanakpur Controversy tool by means of which she can preserve her interests regarding Nepal. However, if India co-operates meaningfully, and In 1983, India completed the technical study for a 120 MW undertakes her own programme for the Kosi high dam, it could hydroelectric project on the Mahakali, to be built upstream of prove a boon for the entire region, and funds and technology the Sarada barrage, on land which was swapped with Nepal in 127 might be available to commission the project. The Kosi high 1920. It also planned to drop the tailrace water (volume of dam is essential to India more than to other riparian countries; water after generating electricity) (566 cumecs) from the in the Indian state of Bihar alone an average area of 450,000 ha hydroelectric plant straight into the Sarada canal (of 326 and a population of 21 million is affected by floods every year.

128 Supra note 17, pp. 115-116. 125 Supra note 8, p. 48. 129 Staff, “Flood Devastation”, 2 August, 2002, The Rising Nepal. 126 A. B. Thapa, "Urgent Need for Controlling Kosi Floods" 8 Water and 130 Supra note 44, p. 178-182; also see U. K. Verma, "Socio-Economic Energy Commission Bulletin, (1997), pp. 7-10. Renaissance through Dynamic Indo-Nepal Co-operation in Water 127 Supra note 22, p. 379; also see supra note 12, p. 177. Resources Development" (1994) in 4 Water Nepal, pp. 140-142. 222 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 223 cumecs capacity only), bypassing the old Sarada barrage. In the held and finally an agreement was concluded, with the downstream area of the project, the Mahakali Irrigation Project Makhakali treaty of 1996. in Nepalese territory was already in operation, which could have suffered adverse effects from such an upstream diversion. As a result of the conclusion of a new treaty and the inclusion Without giving either due notice or any technical information to of Tanakpur in it, Nepal has benefited from the project in Nepal, India carried out this project almost as if on a war several ways. She is being provided with 150 cusecs of water footing, irrespective of such obvious adverse effects. Nepal (from a 1000 cusec capacity). Additionally, Tanakpur had a voiced her concerns about the proposed project, but they were regulator constructed in order to irrigate some 4,000 to 5,000 not heard or the corrections implemented until the 1992 Joint hectares of land in Nepal; an annual supply of 70 million KW- Communiqué between the Prime Ministers of both countries, hours units of energy ‘free of charge’133 was provided and a contrary to the rules of ‘equitable utilisation’ and ‘no harm’. road link was built from the barrage to connect with Nepal's Only in the Joint Communiqué was it agreed that the Tanakpur east-west highway at Mahendranagar. It should be possible for tailrace waters should be discharged upstream of the Mahakali India to divert a full 1000 cusecs supply to satisfy Nepal’s barrage so as not to affect existing consumptive use in Nepal.131 desire for water from this project (in contrast to the initial The Tanakpur barrage, a fait accompli once constructed, diversion of 150 cusecs), once the Pancheshwar storage dam is aggravated situations already controversial in Nepalese political completed. circles and serious questions were asked about the future of Indo-Nepal relations. This was only settled after the conclusion 4.11 Issues of Downstream Benefits and ratification of the Integrated Mahakali Treaty in 1996. The 120 MW hydroelectric project lies below the proposed Water diplomacy is indeed a very sensitive issue in the entire Pancheshwar dam site and a little above the old Sarada barrage region of south Asia; Nepal has come to understand that water at Banbasa. A short 577 M long afflux bund (embankment or resources are both a symbol of national identity and pride, and causeway in India and Pakistan) (occupying some 2.9 ha of a source of economic potential. Thus, its utilisation has become land) has been constructed, with the consent of the Nepalese the key strategy for the development of the nation. A precise government (consent which was only sought retrospectively), definition of downstream benefits upon which all are agreed tying the barrage to high ground in Nepal as a flood protection cannot be found; however, if any water resources project measure. The afflux bund is in Nepal and remains under activities in the upper reach of an IWC yield any type of benefit 132 Nepalese sovereignty. However, as no amendments or to the lower reach of a catchment area or downstream country, corrections were made to address Nepalese concerns and these are called 'downstream benefits'.134 In principle and in interests, no further co-operation was possible; this was a case practice, such benefits must be shared equally and equitably. of a dichotomy of perceptions between two states. After a long Professors Bourne, McCaffrey and Utton hold the view that: dispute and general outcry in Nepal, several negotiations were “There is support for the existence of a principle of downstream benefits in customary international 131 S. C. McCaffrey, The Law of International Watercourses, Oxford: Oxford University, 2001, p. 348; also see D. Gyawali and O. Schwank, 133 Ibid. The term ‘free of charge’ does not seem appropriate for Nepal’s "Interstate Sharing of Waters Rights: An Alps-Himalayan entitlement. Comparison" (1994) in 4 Water Nepal, p. 234. 134 T. Upreti, "A Perspective on Downstream Benefits" in the Kathmandu 132 Supra note 44. Post, June 24, (2000), p. 10. 224 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 225 law. Under the concept of equitable utilization, Canadian storage; the power generated by these augmented watercourse states are entitled to a reasonable and waters was divided equally with Canada, and the Canadian equitable share of the benefits of an international share was later bought by the US at the agreed price of US$ watercourse. It would seem to follow, therefore, 254 million.136 The money was provided to Canada in advance that when a watercourse state does or refrains from so that she could undertake the works. The benefits accruing doing an act that confers a benefit on another state from these works were classified as power, flood control and sharing the watercourse, the latter state is under an irrigation and were each shared equally. However, it took obligation to share the benefit equitably with the almost twenty years to convince the United States about these former. The treaty practice of states supports the benefits and conclude this treaty.137 existence of this principle of sharing benefit. As it is well known, the principle of downstream benefits Bourne, McCaffrey and Utton have given a few instances of is dealt with explicitly in the Columbia Treaty (542 downstream benefits from the several treaties concluded U.N.T.S. 244). And many other treaties provide for between riparian states. Those practices show that the concept the return, either in kind or in cash, of a share of the was practised from the early nineteenth century, and has been benefits received as a result of the acts done in widely recognised; as a result of such practice, it has become another state.”135 the rule of customary law.138 Moreover, as further argued by the above group of professors: The damming and storage of flood and snow fed waters of the Columbia River in Canadian territory made it possible to 136 R. W. Johnson, “The Columbia Basin” in A. Garretson, et.al (eds), The augment and regulate an enormous volume of water, from Law of International Drainage Basins, New York: Oceana Pub., 1967 which a series of hydropower stations were constructed to p. 228. harness a huge amount of hydropower in US territory. 137 Ibid. pp. 167-24; also see C. B. Bourne, “The Columbia River Furthermore, flood damage was controlled, and substantial Controversy” (1959), in 37 CBR, pp. 444- 472. 138 Supra note 135: The authors refer to six examples: i) the 1919 Treaty of harm was thereby prevented. In addition, the regulated flow of Versailles gave France the exclusive right to use the Rhine for power the waters was used for irrigation in the US in times of need, to production in return for paying Germany one-half the value of the energy increase agricultural productivity. However, a considerable produced; ii) the 1921 Barcelona Convention provides for sharing downstream benefits, though where a state is required to improve or maintain a river, it is chunk of Canadian territory was submerged by these reservoirs, entitled to a reasonable contribution of costs; iii) a 1926 agreement between and forests, flora and fauna were extinguished; also a big South Africa and Portugal allowed South Africa to make diversion works on amount of money was spent in order to construct these the Kunene River in Angola but required it to compensate Portugal (a 1969 treaty between the parties also provided for a sharing of benefits from the structures. The United States agreed to pay US $ 64 million for construction of a dam); iv) the 1977 Rhine Chlorides agreement states that the downstream benefits accrued in their territory as a result of Netherlands is to pay a share of the cost to France of disposing of waste salts in a manner other than discharging them into the river (the authors note that “this is a particularly striking example since it could be argued that France had a 135 Report of the Panel on Nepal’s International Rivers, comment on “A duty to avoid significant pollution harm to the Netherlands apart from the treaty”); v) the Lesotho Highlands Project treaty requires South Africa to pay a Position Paper on The Rights, Duties and Obligations of Upper and significant share of construction costs for works undertaken in Lesotho in Lower Riparian Countries for Sharing Water Resources” a Position return for downstream benefits; vi) the 1977 treaty between Czechoslovakia Paper of Nepal submitted to the Nepalese Parliament by a team headed and Hungary (which was the subject of the Gavcikovo-Nagymaros case) by the author in 1998. Annex 2, pp. 2-5 (a copy of the report is one the provides for a dam and hydro plant to be located in Czechoslovakia (now file with the author). Slovakia) with Hungary to receive power and flood control benefits. 226 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 227 “While treaty practice can be invoked in support as a downstream benefit (accruing in this case to the upstream of the principle of downstream benefits where the country).140 act or the omission to act that confers the benefits was done or not done at the request of the Besides this, in India, even in the sphere of inter-state relations, downstream state, treaty practice does not exist to the states of UP and Bihar, agreed to share both costs and support the wider proposition that a downstream benefits in proportion, in the jointly developed Muskhand Dam state is obliged to share benefits that it receives Project.141 The interesting fact about this project is that central from the acts or omissions of an upstream state government intervention was required in order to conclude this that it has not asked for or otherwise agreed to. agreement. Later, the states of Gujarat and Rajasthan also The obligation to share downstream benefits, concluded another agreement on cost sharing in the Bajaj Sagar however, may exist under customary international Dam Project in 1966, in which Rajasthan agreed to pay an law even when these benefits have not been amount to Gujarat for work undertaken by the latter and the solicited or agreed to. Logically, the obligation benefit was shared by the former.142 In 1975, the construction would seem to be implicit in the principle of of the Kadana dam submerged territory in Rajasthan, for which equitable utilization; for, if benefits are to be Gujarat paid compensation. In another dispute between Gujarat shared equitably, it should not matter whether or and Madhya Pradesh (MP) (both Indian states), over Narmada not they were sought by the beneficiary. waters in the Narmada Sagar dam, the Narmada Tribunal Furthermore, a failure to share windfall benefits applied this principle and as a result MP obtained downstream would seem to be a case of unjust enrichment. benefits from Gujarat.143 This is not to say, however, that there may not be a difference between a case in which a Moreover, there is a further interesting example of sharing downstream state has asked for a benefit and one downstream benefits with another sovereign state. India is in which it has not so asked; in the latter case, planning to construct the Dihang Dam in its far east, which, she equity might dictate that the downstream state not claims, would bring down the flood level by one metre, with pay as much as it would have to in the former Bangladesh substantially benefiting from the mitigation of the case.”139 flood damage. Dubey, a former foreign secretary of the GOI, has questioned how India can deny Nepal payment for Another example is provided by the Owen Falls Dam in downstream benefits resulting from Nepalese work whilst India Uganda, where Egypt has developed and supplied hydropower is simultaneously bargaining with Bangladesh over this to Uganda at her own cost; however, the water augmented in the reservoir was exclusively for her own use. In order to supervise the water and power arrangements, a resident Egyptian engineer was provided for in the agreement between 140 D. A. Caponera, “Legal Aspects of Transboundary River Basin in the the two states; in addition, electricity was produced for Uganda, Middle East: The Al Asi (Orontes), The Jordan and The Nile” (1993) and reparation for resettlement paid to her, at Egypt’s expense, in 33 NRJ, pp. 654. 141 Supra note 54, pp. 313-314. 142 Ibid. pp. 314-315. 139 Ibid. p. 4. 143 Supra note 22 pp. 323-324. 228 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 229 project.144 This could in fact form the basis for negotiations India has recommended that such benefits must be shared aimed at resolving one of the outstanding issues between India between the states concerned; this report was submitted to the and Nepal. Indian government in 1961.147 Furthermore, it seems that the Indian government has practised the idea of sharing the benefits In order to share the downstream benefits co-operation is proportionately in the interstate sphere of India. The Ministry essential. The prerequisite for achieving or sharing these kinds of Irrigation and Power wrote to all state Governments on April of broader benefits are co-operation, good neighbourly 17, 1967, stating that the cost of multipurpose river valley relations, and good faith between the riparian states. That is to projects should normally be allocated only to three functions: say, in the absence of any investment of money, effort or irrigation, power and flood control. The letter recommended technology by the lower riparian country, if hard work and the “facilities used” method of allocation of joint costs in investment is put into any water resources project in a boundary preference to the “alternative justifiable expenditure” or or transboundary watercourse, and such work yields any benefit “separable costs, remaining benefits” methods.148 to the downstream country (e.g. augmentation of water, flood modernisation, navigation, power generation, recreation, In the United States of America, the principles of downstream fisheries), benefits must be paid for by the beneficiary in benefits have also been practiced in the interstate sphere. For proportion to the cost and benefits. Avoided cost theory (a example, Section 10 (f) of the Federal Power Act, 1935, method of allocating costs and benefits in water projects) will imposes on the Federal Power Commission the duty to be helpful in assessing benefits; as a case in point, it seems that determine the benefits to downstream plants from upstream Nepal is willing to sell power to India at the alternative thermal storage, and assess charges against those downstream plants.149 or nuclear replacement cost, plus generation cost.145 In fact, the United States has remained fertile land for the enunciation of the principle of equitable apportionment, which This issue has been recognised in India in principle as well as in practice. For example the Indian River Act of 1956, Section 147 Ibid. p. 323: The Yadav Mohan Committee was appointed by the 15 (4), has recognised the downstream benefit concept. This Government of India in 1961 to examine the levy of charges for Act provides that in the preparation and execution of schemes utilisation of water on a downstream project. The committee by the Board it shall take into account the costs likely to be recommended as follows: “when an upstream project is constructed incurred in constructing and maintaining such works; and the later than an existing downstream project, the latter shall be liable to costs shall be allocated among the interested governments in pay for the benefit obtained from an upstream project irrespective of the period that has elapsed after its construction; but when the such proportion as may be agreed or, in default of agreement, downstream project is constructed after the upstream project, the “as may be determined by the Board having regard to the downstream project need pay for the benefits received only if it is benefits which will be received from the scheme by them.”146 conceived within 20 years of completion of the upper project. In either In addition, a committee constituted by the Government of case the charge will be borne only if it is clearly established that the downstream project has been benefited by the changes in flows or otherwise by the construction or operation of the upstream project. The 144 Supra note 78, pp. 51-57; also see R. Paisley, “Adversaries into lower project will bear the cost to the extent that the actual additional Partners: International Water Law and the Equitable Sharing of benefits are made available to it and as and when these benefits Downstream Benefits” (2002) in 3 MJIL, pp. 280-300. accrue”. 145 Supra note 22, p. 282. 148 Ibid. p. 324. 146 Ibid. 149 Ibid. 230 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 231 is considered the foundation of the principle of equitable Nonetheless, putting the theory into practice is a very utilisation. Furthermore, being an indispensable part of complicated task, as experience shows, which suggests that equitable utilisation, the issues of sharing the costs and benefits without co-operation between the riparian countries concerned, in a shared river, lake or stream, has been dealt with in several the task is not feasible. The real issue in the development of resolutions of conflicts between states.150 Nepalese water resources is the sharing of costs and benefits with her lower riparian states. Evidently, the sharing and Nepal and India have agreed in principle to share the cost in allocation of benefits from Nepalese water resources is not only proportion to the benefits in the Mahakali River Treaty, 1996. bilateral in nature: it has crossed over into the sphere of Article 3 (3) states: regional management. The fact is that Bangladesh would, like “The cost of the project shall be borne by the India, benefit from water works in Nepal. From experience in Parties in proportion to the benefits accruing to the international arena, downstream benefits could be them. Both the Parties shall jointly endeavour to categorised as follows: mobilize the finance required for the implementation of the Project.”151 Power Benefits

These should be evaluated by comparison with other This arrangement entails the acceptance of the principle that alternatives available for generating power. This obviously sets must be applied in future co-operation in the area of water the maximum price that Nepal might seek for the cost of resources development between two states. Besides this, two generation and transmission to the Indian border, i.e. the projects, namely the Gandak and the Kosi projects were average of the two ‘costs’, and if it goes on to other countries implemented by India at her own cost. These projects do not adjoining India, some of the costs for such facilities could be provide examples of downstream benefits. However, they are paid by Nepal to India. It is understood that Nepal has instances of providing some irrigation and hydroelectric suggested to India that her current thermal replacement cost, benefits for Nepal as a matter of Nepal’s entitlement to such plus the Karnali generation cost, divided by two, would lead to shared resources.152 a fair price. That could provide a basis for negotiation, but it

should not be forgotten that there could be a cut-off price which

150 G. William Sherk, Dividing the Waters: The Resolution of Interstate India would not be willing to exceed, as she would then find it Water Conflicts in the United States, the Hague: Kluwer Law, 2000, p. prudent and economic to develop her own hydroelectric, 60. thermal or nuclear options.153 The Columbia River Treaty has 151 37 ILM (1997), p. 700. provided a method for calculating flood benefit, and also 152 Article 5 of the Gandak project states “(iii): the Government of India agrees to regulated flow in the downstream state for extra generation of provide locking arrangements for facility of riverine traffic across the barrage 154 free from payment of any tolls whatever, provided that this traffic will be power. Likewise, the Ycetra and Itaypu Project in the Border regulated by the project staff in accordance with the rules mutually agreed River Panarma, the Columbia River experience, and the Laos- upon between His Majesty’s Government and the Government of India. Similarly Article 7 provides irrigation facilities to Nepal at their cost. The Kosi

project agreement Article 4 provides that Nepal would be entitled to 50% of electricity generated from the project and that a huge irrigation network would 153 Supra note 22, pp. 344-345. be provided at India’s cost, and that some irrigation benefits would also be 154 R. W. Johnson, “The Columbia Basins” in A.H. Garretson, et.al (eds), provided. These benefits would also be provided as a share of Nepal’s The Law of International Drainage Basins, New York: Oceana Pub., ownership in the resources.” 1967, pp. 167-241. 232 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 233 Thailand experience on the Mekong basin have furnished good Flood Control Benefits examples of the sharing of border resources. Several These could be calculated on the basis of the value of people hydroelectric projects in Canada which sell power to the USA and property in the lower reaches of the catchment area saved provide examples of methods of the sale of power; this is from damage. There are numerous reports prepared by the GOI generally on the basis of 80% of alternative generation cost, or and international organisations which suggest that the annual sometimes its cost of generation and sale of power shared by damages from the recurrent floods from Nepalese rivers could two.155 However, India persistently advocates the plus price form a basis for negotiation. Nonetheless, immense devastation principle based on the price of generation plus a certain from Nepalese rivers flowing to India can be prevented, and percentage as profit.156 India should not be exempted from the obligation to pay for

this. Billions of dollars could be saved by flood modernisation Irrigation Benefits programmes alone. Take, for example in Bihar State, the Kosi An augmented flow of water could provide extended irrigation River flood in 1987: out of 39 districts, 33 were severely and cropping downstream, and the potential for increasing flooded, and an estimated Rs. 1200 crore worth of property was damaged; such huge potential benefits should be shared on an productivity to feed 240 million people of a growing population 159 in North India, and 10 million in Bangladesh.157 It is argued equal basis. from technical experience that the life of a dam or reservoir is Navigational Benefits normally 50 years and the benefits should be taken within this period. It appears (in Indo-Nepal water diplomacy), that this Much emphasis has been given to the basic need for Nepal’s issue remains much more complicated than expected. Nepal existence, and this remains a crucial element of Indo-Nepal asserts that the waters augmented in a reservoir or dam can be relations. If this issue were appreciated by India, Nepal could used in times of scarcity during the dry season, increasing crop enjoy navigational facilities via rivers down to the sea. This is a problem for Nepal that should be sorted out, and we should yields and even permitting the growing of different types of note here that its resolution is pivotal in the solving of the wider more beneficial crops. Hence, those benefits should be problems of Indo-Nepal water sharing and allocation. calculated and duly paid to Nepal. The other benefit is the Navigation on the Gandak and Kosi, via the Mahananda and the control of silt and sedimentation, which significantly reduces or Koroyota and thus into the lower Ganga-Brahmputra system, even prevents flood devastation and other damage; this too has been proposed by Bangladesh. If the Gandak-Kosi- must be shared. In this sphere, international experience could Mahananda schemes were to be consented to by India, or works be shared and meaningful co-operation from India is to be were carried out pursuant to the Indo-Nepal Gandak agreement expected, to enable a breakthrough.158 of 1959, which provides for a lock in the Gandak barrage, or if other potential for navigation at the Kosi or Karnali rivers were expedited by India as a gesture of goodwill, a big impediment 160 for Nepal would finally be removed. Furthermore, one way 155 Supra note 12, p. 339. 156 Supra note 48, pp. 53-65. 159 Supra note 17, p. 116. 157 Supra note 25, p. 225. 160 Supra note 22, p. 347; see supra note 12, p. 177; also see supra note 158 Supra note 22, pp. 344 346. 20, pp. 208-209. 234 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 235 to create a good environment for progress might be through the the area of inland waterways and access to and from the sea can use of these vast water resources for mutual or regional be of significance in the Nepalese context.165 advantage. 4.12 Regional Co-operation In the case of India herself, she has declared National Navigational Route No 1 to be from Allahabad to Kolkotta; if There are several views on how to maximize benefits from proper arrangements could be made up to Nepal, she also these huge resources. There are many possible scenarios for would benefit from these services. There are similar problems two riparian country involvements, e.g., Indo-Nepal co- in relations between India and Bangladesh. India has operation. There is also trilaterisation of the issues that include persistently resisted a former proposal for Ganga flow augmentation and related reservoir construction in Nepal, Nepal, India and Bangladesh; even inviting Bhutan in, as asserting that the Ganga is an Indian river not an international conceived in the SAARC Quadrangle concept; and the river, contrary to the precepts of IWL, particularly in view of possibility of adding China to this group. Finally, there is scope the judgment rendered by the PCIJ in the River Oder case.161 for the internationalisation of the issue by involving multilateral While India rejected Bangladesh’s proposal of augmentation of organisations, e.g. the World Bank, GEF, UNDP, UN or indeed dry season flow in the Ganges, Bangladesh similarly refused to any influential and resourceful western government; it is 162 accept the Brahmaputra-Ganga link canal proposal. noteworthy that the UK and the USA have already shown an interest.166 These institutions are capable of making a It is technically viable for boats to travel from the Hooghly (in breakthrough in issues of this magnitude, in terms of India) on the Ganges (which emerges in Bangladesh), via economics, technology and politics;167 the only aim should be Farakka and Kanpur in India to the following points in Nepal: to achieve broader co-operation between all riparian states and Bhardaha on the river Kosi, Narayanghat on the Gandak, and Chisapani on the Karnali; however, the economic and technical to gain maximum benefits from these resources. The motives feasibility, and other implications, need to be studied further.163 behind such external involvement should be considered to be Furthermore, Water Resources Ministers of Nepal and India positive, regarding it not as external interference, but rather as constituted a joint study team to investigate the possibilities of external co-operation. The need for it is crystal clear. The navigation on the Kosi, Karnali and Gandak rivers, in 1997. It governments of this region have been negotiating water is understood that the studies have not been not completed so resources development for the last forty years, and so far such far,164but it is expected that once the technical feasibility has bilateral endeavours have yielded no tangible result nor does been endorsed, both states can expect to execute projects for navigation. The experience gained by Austria and Paraguay in 165 A. B. Thapa, “Landlocked Austria’s Lesson for Nepal” in 22 Spotlight, Sept. 27-Oct.3, (2002), pp. 1-3. 166 M.R. Josse, “The Case For New Thinking” (1994) in 4 Water Nepal, p. 260: US President Jimmy Carter and British Prime Minister James 161 PCIJ Reports (1937) pp. 221-222. Callaghan made separate statements in January 1978 offering their 162 Supra note 12, pp. 203-210. “countries technical and financial support to any regional water 163 Supra note 20, pp. 208-209. development project that India, Nepal and Bangladesh may put up”; 164 Annual Report of Water and Energy Commission Secretariat 1999, pp. this was not to India’s liking. 13-14. 167 Ibid. 236 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 237 any miraculous breakthrough seem likely in the foreseeable navigational outlet to the sea is Nepal’s birthright.171 The future. If any achievements are to be made, co-operation on a significance of enabling navigation by international waterways regional level is the first condition; but far from this happening, in Nepal is evident from these facts. There are two other nothing has been done nor is anything expected, except for alternatives for Nepal in terms of routes to access the sea: the some bilateral treaties, and this inaction remains the subject of Kosi-Gandak link canal to Mahananda-Koroyoka, Bangladesh; sharp criticism.168 However, the World Bank has made an and a 16 km long tunnel link between the Jhapa district of the approach with a view to involvement in the resolution of the eastern part of Nepal, passing through India at a depth of 3000 Ganges disputes; it was reported that Bangladesh welcomed it metres, and coming out at the western border of Bangladesh. but that India refused it, asserting that it was a bilateral issue.169 Both of these alternatives require multilateral consent and co- operation. If a spirit of co-operation is established, technical India has persistently maintained that the Ganga170 is an Indian and financial assistance is easy to obtain; examples include the river, disregarding Nepal’s legitimate demand for navigational Eisenhower tunnel in the US, and tunnels below the sea in rights over river access to the sea. Bangladesh’s legitimate Japan and Hong Kong.172 Several tunnels have already been demand for the sharing of Ganges waters in an equitable and constructed in Switzerland which proves this technology. reasonable manner, and augmentation of lean season flow, has also been denied. It was once demanded that the Ganga be Bangladesh, from the time of its emergence in 1971, has declared "an international river of south Asia" and Nepal persistently demanded Nepalese involvement in the considered a co-riparian partner along with India and augmentation of the dry season flow of the Ganges; it is evident Bangladesh, for the purpose of sharing her waters and benefits. that without Nepal's involvement in building huge reservoirs in her own territory, this is not feasible and India, for her part, has This specific proposal was made by Shrestha, an expert on repudiated the idea. On the contrary, India demanded the Nepalese foreign policy, who has pointed out that it cost Nepal construction of a Brahmputra-Ganges link canal, 324 km long, Rs 66 million to transport 100,000 tonnes of freight from one third within Bangladesh's territory and joining the Ganges Kolkotta to Kathmandu against just Rs 6.7 million if the goods above Farakka, although this was outrightly rejected by were moved by inland waterways. He concluded that a Bangladesh. In order to increase the Ganges flow, the diverting of the Brahmaputra through the Arun valley in Nepal is also recommended; if this were implemented, the chronic problems 168 The Kosi, the Gandak, and Tanakpur are highly criticised projects in Nepal, whereas the long awaited Mahakali Integrated Treaty has also not been implemented so far. In the Indo-Bangladesh sphere, the 171 Supra note 20, p. 209; A. B. Thapa, “Kosi Navigational Canal” in 8 suspicion, and distrust are visible, as evidenced by the lack of proper Water and Energy Commission Secretariat Bulletin, (1999), implementation of bilateral instruments. Kathmandu, pp. 5-7: the experience of the US tells us that shallow 169 Supra note 45 (conflicts) pp 148-151: the Bank’s President, Robert draft inland water transportation can be about 5 times cheaper than McNamara, has visited both India and Bangladesh and proposed railway, 21 times cheaper than road transportation and 63 times mediation, but this was refused by India. cheaper than air transportation; also see H. Shrestha, “Water Resources 170 J. G. Lammers, Pollution of International Watercourses, the Hague: in Nepal-China Relation” The Telegraph, 15 January (2003), Martinus Nijhoff, 1984, pp. 313-317, supra note 22, p. 347; see supra Kathmandu. note 31, p. 122. 172 Supra note 21, p. 134. 238 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 239 between India and Bangladesh would definitely be sorted and suspicious. In turn, India is also afraid of these neighbours out.173 But broader co-operation is still the key. ganging up against her, or taking other hostile attitudes. In these circumstances, it is recommended that third party Flood modernisation is not possible without Nepal's co- involvement could help end their suspicion and distrust, and operation. India wants this modernisation, and some work on open the windows of opportunity for fostering bilateral and early forecasting and warning arrangements has already been regional co-operation. The World Bank involvement in the done bilaterally. If arrangements between the three nations Indus impasse resolved issues of the similar magnitude between were made, benefits for all of them could be greatly increased. two rival states. However, the problems within the provinces of Flood control, navigation, augmentation of dry season flow, Punjab and Sind in Pakistan remain unsettled; both states are and the generation of more hydro power from augmented water alleging stealing and wastage of their share of Indus waters, 176 are obvious benefits to all countries of south Asia. Moreover, and severe disputes between the Indian states of Karnataka and navigation services and business trade links can be established Tamil Nadu remain unsettled despite the rulings of the Cauvery through India, while coal and gas could be imported from River Authority, and even a judgement from the Indian Bangladesh; these are the potential benefits of a multilateral Supreme Court. 177 arrangement. 174 In order to enhance this idea and implement regional co- Nevertheless, there are general guidelines for examples of co- operation, several initiatives have been taken both in unofficial operation, and the sharing and allocation of the benefits from an and official spheres; for example, under the auspices of the IWC; by following these practices and learning from these United States Agency for International Development (USAID), experiences, states of this region can accrue maximum the US government is implementing a project called the South benefits.175 Every aspect is closely linked to equity, which takes Asia Regional Initiative (SARI-within SAARC area). The everyone’s interests into consideration. The new potential formation of the South Asia Growth Quadrangle (SAGQ- afforded by the involvement of a third party to enhance and Nepal, Bhutan, India and Bangladesh) with a view to promoting facilitate regional or bilateral co-operation is one result of sub regional co-operation in the fields of energy and trade recently emerging creative thinking. It is recognised that India’s (among others) is also considered to be a watershed. predominant role in the region, in terms of her size, economic, Furthermore, regular meetings of experts are taking place, and a and military power, technological status and political stability, common electricity grid for these nations is expected very has made her smaller and weaker neighbours feel vulnerable soon.178 Besides that, the Asian Development Bank (ADB) has given the green light for providing financial assistance to 173 H. M. Shrestha and L. M. Singh, “The Ganges-Brahmputra System: A develop a series of three Arun hydropower projects, of 1050 Nepalese Perspective in the Context of Regional Cooperation” in A. K. MW total capacity, in Nepal, enhancing regional co-operation. Biswas & T. Hashimoto (eds), Asian International Waters From Ganges- Brahmputra to Mekong, Oxford: Oxford University, 1996, p. It has also initiated another project named Regional Technical 81. 174 Supra note 8, p. 361. 176 Supra note 55, pp. 1-3. 175 Supra note 22, pp. 326-328; also see J.S. Mehata, "Opportunity Costs 177 Staff, “Karnataka ignored the Supreme Court Order.” The Times of of Delay" in D.J. Eaton (ed), The Ganges-Brahmaputra Basin: Water India, 5 October 2002. Resources Co-operation between Nepal, India and Bangladesh, 178 Staff, “Arun Project with Indian involvement.” The Kathmandu Post Austin: the University of Texas, 1992, p. 12. 10 January 2002. 240 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 241 Assistance (RETA), which being implemented in order to economic transactions and the creation of economic or trade enable the SAGQ nations to share and trade off the available blocs. Such characteristics have become a modern energy benefits among themselves.179 phenomenon: yesterday's enemy states are the reliable friends of today.181 Within south Asia, China and India were mutually In a recent development, India is now undertaking a study hostile states and have been to war with each other; however, investigating linking 37 rivers in a region extending from the this has not hindered China from trading uranium with the Himalayas to the southern peninsula of India and bringing Durgapur Nuclear Plants in India in the interests of business.182 water from where there is a surplus to areas of water deficit by Moreover, both nations have recently agreed to enhance constructing a network of dams and reservoirs and a network of bilateral trade, during the visit of the Indian Prime Minister to canals. In order to implement this ambitious project, riparian China.183 If even a situation as sensitive as this cannot co-operation from Bhutan, Bangladesh and Nepal is essential. undermine trade and business, nothing is beyond reach, Unfortunately India seems determined to implement this project including the harnessing of Himalayan water resources for their unilaterally and complete the vast amount of work involved by common benefit: every obstacle to this can be removed. Equity 2016, starting in 2006 (she expects to complete the chains of can help in this regard. studies before 2006).180 After successful negotiation with riparian states, which would be hard, but will yield a definite As to the arguments made in connection with non- outcome, the grievances and bitterness of the past would be implementation and outdated instruments (such as the 1950 removed, and everyone’s interests would be taken into treaty between Nepal and India), an Indian writer, Datta-Ray, consideration. However, this project will only happen given a has advised his government from a new perspective, something spirit of regional co-operation. of which the government of Nepal is aware:

4.13 Problems and Prospects of Water Resources “access to or from a land-locked country is no Development longer a favour. It knows, too, that colonial style treaties cannot forever inhibit a sovereign nation’s The pace of globalisation and interdependence has created an foreign policy options or choice of arms supplier. opportunity for states to integrate and work closely with each Since there is nothing India can do about these other in order to obtain maximum advantage. As a result of the legal entitlements, it might do so with good grace end of the Cold War, states are focused on business and 181 P. Muchlinski, Multinational Enterprises and the Law, London: Blackwell Pub., 1997, p. 243; also note Expansion of EEC membership 179 Staff, “Regional energy grid “The Kathmandu Post, 26 December towards Eastern Europe, creation of NAFTA, ASEAN, SAARC, 2001. SADC and so on. The expanding foreign direct investment (FDI) in 180 S. Aiyer, “Changing the Course” in XXVII India Today, January 20 China leads to China’s development and her growing position in the (2003), pp. 28-32; also see R. R. Iyer, “Making of a Subcontinent international manufacturing market, and her close trade relations with Fiasco” in Himal South Asian , pp. 1-8; also H. Thakkar, “Flood of Europe and the USA. nonsense: How to Manufacture Consensus for River-Linking” Himal 182 Staff, “Nuclear pay-off: China to supply enriched uranium to India”, South Asian, August (2003), pp. 1-5. Also see “Bangladesh Concerned Far Eastern Economic Review, 19 January, (1995), p. 22. over India’s Proposed River-Linking Project” in 183 Staff, “Nathu-La Pass is to be open for trade after the war of 1962.” www.internationalwaterlaw.org The Kathmandu Post 2 August, 2003. 242 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 243

so that at least friendship and influence survive. converted into a developed and prosperous part of the world. Ultimately, these will remain our best weapons in Simultaneously, the other nations also need to move forward, the Himalayan kingdom. We cannot afford to resolving each and every issue in the changing context, in order blunt them through the antics of busybodies to meet the wider objectives of such co-operation. If these whose phoney idealism or cynical calculation arrangements could be made, the resources, technology and threatens to spoil the climate for a 184 skill of the world would undoubtedly become available to these reconciliation." 185 governments. Hence, as a regional power, India should not continue to expect reciprocity in every agreement (as, for example, in the The facts suggest that in terms of water per unit of land, the provision of the Peace and Friendship Treaty 1950), which her Ganges-Brahmaputra-Meghana basin is second only to the weak neighbour cannot sustain. If this arrangement were made Amazon. Unique stores of flora and fauna, and endangered applicable in Nepal, and if 3% of Indians were allowed to do species are found in the only Sundarbans (the largest mangrove so, then the population with Indian origin in Nepal would be forest in the world). The attainment of India’s aspiration to the majority. But if the same percentage of Nepalese were to become a member of the Security Council of the UN also assimilate into India's one billion population, it would not make hinges on how much she can reconcile every state’s interest in a any difference to them, because 600,000 people (3% of 20 balanced way. Third party involvement was recommended in million) would not make a noticeable impact on one billion. IWC finance, technology and manpower transfer to developing Since the right of access to and from the sea is already settled countries, as in the case of the Indus Waters Treaty 1960.186 as a customary rule of international law, this right should be provided unhindered and without demands for concessions India must accept this reality now and forget the intransigent from Nepal. A huge country with large resources such as India pattern of bilateralism. should not ask for complete reciprocity from a weak and vulnerable neighbour such as Nepal, but rather, should 4.14 Conditions for Funding Imposed by the cooperate wholeheartedly. In other words, while India itself a World Bank and the Other Donors developing country it should nonetheless cooperate with its even less-developed neighbour. The implementation of water projects is a costly business, involving huge amounts of money with a long gestation period. India, since she is a regional power and has a strategic position The WB has been financing transboundary water projects since (in particular because every drop of water from Tibet, whether 1949 (El Salvador’s RioLempa Hydroelectric Project), then it passes through Bhutan and India or through Nepal and India, again in Rhodesia in 1956, where there was no riparian dispute. drains into the ocean via Bangladesh), has a greater On the other hand, the Bank refused to finance the Bhakra responsibility to create an environment for broader regional co- Nangal Project in India in 1949, the Lower Sind Barrage in operation, as a result of which the whole region would be

185 Supra note 34, p. 130. 184 S.K. Datta-Ray, "Living with Nepal: Must Busybodies Queer the 186 A. K. Biswas, “Indus Water Treaty: The Negotiation Process” (1992) Pitch?" in the Statesman weekly, 17 India, February (1990), p. 11. in 17 WI, p. 209. 244 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 245

Pakistan in 1950, the Aswan Dam in Egypt in 1955, the Before 1980 little attention was given to the environment and Roseries Project in Sudan in 1987, or the Three Gorges project sustainable development; as a result of this, the WB and other in China. All of these refusals were linked with adverse effects multilateral funding agencies had received pointed criticism.191 187 and riparian objections. From its experience the Bank first Consequently the WB has changed its policy to take drafted its operational policy memorandum in 1956 for its own environmental issues into consideration, and several new rules staff to use; it was revised in 1964 and 1985. In 1993 the Bank have been enacted. These measures have been adopted by adopted an Operational Manual and Operational Policies regional development banks, UN agencies and bilateral donor, O.P.750, “Project on International Waterways” and bank particularly the G7 countries.192 Furthermore, in order to procedure “Project on International Waterways”. These preserve and protect several aspects of the environment, documents were revised in July, 2001. All of these documents numerous funds have been created since 1990, such as the are based on the principles of ‘no harm’ rules and the reason World Heritage Fund, Wetlands Funds, the Montreal Protocol given was that for this, the principles of ‘equitable utilisation’ Multilateral Fund, the Global Environment Facility.193 These contain abstract ideas, vagueness and a lack of clarity.188 In a instruments set out conditions to be complied with in order to similar vein, a document posted on the internet by the Bank qualify for a loan or assistance. Consistent with these seeks to justify its current policy.189 These rules are against the institutional regulations, a state which is looking for a loan for core principle of IWL, equitable utilisation, and it should be developing a water project requires riparian consent in order to amended to reconcile to this principle, because international proceed; in the case of IWC, riparian states are required to institutions can no longer operate against the rules of IWL.190 It exchange information in regards to the particular project. is illegimate not only from the legal point of view but also from the political point of view. Unless and until this has occurred, the Bank would not be satisfied that other riparian countries had given consent for the execution of the project, and that the project does not cause any 187 R. Krishna, “The Evolution and Context of the Bank Policy for Projects on International Waterways” in International Watercourses: Enhancing Co-operation and Managing Conflicts, Washington DC: World Bank Technical paper 414, Salman et. el (eds), 1998 p 31; also see A. Nollkaemper, “The Contribution of the International Law Commission to International Water Law; Does it Reverse the Flight 191 P. Sands, The Principle of International Environmental Law, New from Substance?” (1996) in XXVII NYBIL, p. 57. York: Manchester University, 1995, p. 731. The construction of the 188 Ibid. Also see “D. Goldberg, “World Bank Policy on International Polonoreste dam in Brazil resulted in significant environmental Waterways in the Context of Emerging International Law and the damage at both national and regional levels. Also see I. F. I. Shihata, Work of the International Law Commission” in The Peaceful The World Bank in a Changing World: Selected Essays, Dordrecht: Management of Transboundary Resources, Dordrecht: Graham & Martinus Nijhoff Pub., 1991, pp.135-180 Trotman/ Martinus Nijhoff, 1995, pp. 153-165. 192 For the Kuwait Fund for Arab Economic Development see 189 World Bank Group, International Waterways, www.kuwait-fund.org/frames.htm and for the Saudi fund see the www4.worldbank.org/legal/legen/legen_iw.html speech delivered by M. AL-Shawi, Director of the fund at 190 S. P. Subedi, “Resolution of International Water Disputes: Challenges www1.worldbank.org/harmonization/romehlf.IPlans/Saudi for the 21st Century” in PCIA (ed), Resolution of International Water Fund.statement.pdf. Disputes, the Hague: Kluwer Law, 2003, pp. 33-47. 193 Supra note 192, pp. 730-736. 246 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 247

195 appreciable harm; without this assurance being given, funding frequently happens. The argument is that although IWL is cannot be made available.194 universal, its application varies. That is to say, if you are a Under such an arrangement, the poorer state cannot develop country with resources, you can develop a project as you wish, any water projects in her watercourses whilst a wealthy state even to the detriment of others and no one can stop you; but if can develop any project of her own. The reason for this you have no resources you have to borrow the money, and only situation is that the wealthy country can undertake a water if the riparian states concerned are in favour can the project be project in an IWC, ignoring other riparian interests and only developed. The wealthy nations have not adhered to the law, taking into consideration her own maximum benefit; this in fact whereas the developing nations can do nothing except agree with all the preconditions of the donor, which constitutes an inequitable arrangement in this area. If equality, fairness and 194 The World Bank Operational Manual: Operational Policies; Project on justice are to prevail, then this impractical and unfair system International Waterways. The WB annex 2.A.OP. 7.50 October 1994, should be reassessed, and a fair and equitable arrangement pp. 193-200. (OP 7.50 and BP 7.50 have been amended in 2001. Also should be arrived at. see www4.worldbank.org/legal/legen/legen_iw.html). “Agreements/ Arrangements 3. Projects on international waterways may affect relations between In other words the WB, by giving precedence to the ‘no harm’ the Bank and its borrowers and between states (whether members principle over more fundamental and overarching principles – of the Bank or not). The Bank recognizes as that the co-operation particularly that of reasonable and equitable utilisation – is and goodwill of riparians is essential for the efficient utilisation ignoring the main thrust of IWL.196 In fact, from Article 7, it is and protection of the waterway. ...In cases where differences remain unresolved between the state proposing the project (beneficiary state) and other riparians, prior to financing the 195 In the Nile basin, downstream Egypt had utilised all the benefits, and project the Bank normally urges the beneficiary state to offer to vetoed the other upstream nations, particularly Ethiopia, from utilising negotiate in good faith with the other riparians to reach the Blue Nile’s water. Whereas in the Euphrates and Tigris Basin, appropriate agreement or arrangements.” Upstream Turkey is in an advantageous position, ignoring Iraq’s 4. “Notification legitimate and historic right over it. She has utilised and diverted water The bank ensures that the international aspects of project on an for her own interests in 1991 during the Gulf War, and diversion of all international waterways are dealt with at the earliest possible waters of the Euphrates to fill the Ataturk reservoir was proposed. T. opportunity. If such a project is proposed, the Bank requires the Hoffer, "International Inland Waters" (1994), in 4 Waters Nepal, p. beneficiary state, if it has not already done so, formally to notify 304, states that India diverted the Ganges waters at the Farakka without the other riparians of the proposed project and its project details formally informing Pakistan (later Bangladesh); on the contrary, the (see B.P 7.50, para. 3). If the prospective borrower indicates to objections raised in this connection were not heard by the former, and the bank that it does not wish to give notification, normally the even when the case was brought to the UNGA in 1976 by the latter, no Bank itself does so. If the borrower also objects to the Bank’s tangible result for reparation to the former was undertaken. doing so, the Bank discontinues processing of the project. The In 1948 India temporarily interrupted the Indus river waters to executive directors concerned are informed of these Pakistan, advocating Harmon's doctrine; as for the USA, she diverted developments and any further steps taken.” the Chicago river’s waters ignoring Canadian interests. 6. “Following notification, if the other riparians raise objections to 196 Commentary, II (part two)YBILC (1994), p. 103: “in certain the proposed project, the Bank in appropriate case may appoint circumstances “equitable and reasonable utilization” of an international one or more independent experts to examine the issue in watercourse may still involve significant harm to another watercourse accordance with B P 7.50, paras. 8-12. Should the Bank decide to State. Generally, in such instances, the principle of equitable and proceed with the project despite the objections of the other reasonable utilisation remains the guiding criterion in balancing the riparians, the Bank informs them of its decision.” p. 194. interests at stake.” 248 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 249 clear that not all harm is prohibited by law, and the above Nepal has continually come off badly in bilateral arrangement mentioned notification is not a legal requirement in every case. with India. After the conclusion of several feasibility studies The existing WB policy departs from that of the UNCIW, and and the expenditure of vast amounts of time and money, the as a result favours bigger and more powerful lower riparian to Sikta, Babai and Rapti irrigation projects, the Mulghat the detriment of smaller and weaker upper riparian states. The Multipurpose project and the Kanaki Multipurpose project were WB does not have the authority to change or undermine the all cancelled due to Indian objections.200 Recently, the WB has balance reached in the UNCIW by introducing its own lent US$ 80 million for a power development fund to Nepal; controversial conditions on financing projects on international this was in fact announced after the cancellation of the Arun II waters and the WB also does not have the authority to define Project (1995). It has asked riparian consent from China, India rights, duties and obligations of upper and lower riparian and Bangladesh, a move that has been severely criticised in countries in IWC’s.197 Nepal by water experts, saying that it will establish a new unjust precedent, and a discriminatory attitude towards Nepal; Special clauses favourable to the less developed states have for these reasons some of them have recommended that Nepal’s been written into the instruments of numerous institutions, such relationship with the Bank should to be reviewed.201 Moreover, as GATT, the WTO, the UNCTAD, and the LOSC Convention. S. N. Paudel went on to say that the Bank did not give Moreover, the third United Nations Conference on the Least information to or obtain consent from Nepal while it provided a Developed Countries held in Brussels, 14-20 May, 2001, US$ 1 billion loan to the Indian state of Uttar Pradesh to adopted a programme of action for the assistance of least develop an irrigation project.202 At the same time it is asking developed countries.198 Such favourable rules are absolutely riparian consent before lending money to the Power essential to a vulnerable state.199 Development Fund (PDF) in Nepal, which is obviously a case of discriminatory behaviour on the part of the Bank.

197 Supra note 191, pp. 40-43. The Global Environment Facility (GEF) was established and 198 Special facilities and concessions in the international system such as subsequently restructured to carry out sustainable development trade, investment and favour have been recommended. See “Third United Nations Conference on the Least Developed Countries” activities in the areas of global warming (50% of its fund), Bio- Brussels, 14-20 May, 2001, pp. 4-62. Diversity (30%) and to protecting International Waterways 199 J. R. Crook & S. C. McCaffrey, “The United Nations Starts Work on a (20%). However, there are similar preconditions as well. Watercourse Convention” (1997) in 91 AJIL, pp. 374-377: Article 125 of Besides, every nation and institution has adopted similar the Law of the Sea provides the right of access to and from the sea, which rules.203 Thus, it is argued that the consideration of the unfair is also regarded as a customary rule of international law and gives special consideration to land-locked and geographically handicapped nations; and impractical circumstances prevailing upon vulnerable similar arrangements could be made for such nations whilst applying and interpreting the provisions of Article 5 of the UNCIW. Also see supra note 74, pp. 187-196. The WTO and Debt relief movement of the Bretton 200 Supra note 22, p. 341. Woods Institutions, and the Millennium Development Goal set by the UN 201 Staff, “the World Bank lent money against its own policy”, A highly for development for poor countries and the UNCTAD also undertook placed authority in the Ministry of Water Resources also noted that special clauses favouring the support of such nations in their many such loan was provided without giving notice to Nepal. The documents, and all these matters are guided by the concept of equity. Thus, Kathmandu Post, August 7 & October 3, 2002. the international community needs to adopt a new plan and policy in order 202 Staff, “Nepali Experts comes heavy to the World Bank”, The Rising to understand and address the pressing needs of weak, vulnerable and Nepal 7 August, 2002. geographically disadvantaged nations. 203 www.gefweb.org/operational_policies/operational_programs/OP_8_english.pdf. 250 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 251 nations should be dealt with urgently according to the The first test case under the above provision was the Arun II principles of equality enshrined in the Charter of the United Project 1995, in Nepal, that culminated in cancellation in the Nations. The only solution is to insist that consent must always last stage of finalisation; and this was regarded as an enormous be required, and that no project may be allowed without it; if a setback and insult to Nepal. After the conclusion of dozens of country has economic strength, and goes ahead with the studies, involving the investment of millions of dollars and development of any project for which it does not have consent, taking up years of time, as the project was reaching the stage of this must be stopped by UN Security Council intervention, through its power to maintain international peace and security. concluding a final agreement, and while the government of Wouters argues that the revised protocol of SADC in 2002, and Nepal was waiting for the Bank’s final invitation for the the Implementation Committee established under the signing of this agreement, the President of the Bank informed Convention on Long-range Transboundary Air Pollution by the the Nepalese Prime Minister, M. M. Adhikari, by letter, that the UNECE, set a precedent (established a system) for assisting Bank had cancelled the project unilaterally. This was the result states party to a treaty to achieve the goals therein, which the of severe criticism from an INGO (INHURED International), 204 international community should follow. Only then would about the potential adverse effect of the project on the equity prevail in every circumstance, across all nations. environment, constituting a breach of the Bank’s own policy on environment, resettlement and indigenous peoples. The Bank However, it seems that the Bank has learned by experience, and than constituted an inspection panel of three experts, who in 1993 it adopted a new policy initiative by establishing an visited the sites and submitted a report, in which breaches of its appeal mechanism and an inspection panel. This procedure allows citizens who may be adversely affected by Bank funded policies and an adverse affect on the environment were found. As a result of that, the Bank cancelled its involvement in the projects to file claims regarding violation of its policies, 206 procedures and loan agreements, if the project severely affects project. With the creation of a new mechanism, the the environmental or socio-economic situation, such as flora Inspection Panel, although generally speaking, the WB’s new and fauna, or the resettlement and rehabilitation of indigenous environmental orientation is commendable, Nepal did suffer people. It has also promoted more flexible approaches towards economically from this Bank policy initiative. Particularly information disclosure by the Bank.205 since there was no alternative project ready for implementation; for this reason Nepal experienced electricity load shedding for

204 P. Wouters, “Universal and Regional Approaches to Resolving International Water Disputes: What Lessons Learned from State Practice” in PCIA (ed), Resolution of International Water Disputes, the 206 Report of the Inspection Panel submitted to the Bank, News release no. Hague: Kluwer Law, 2003, pp. 111-154. Whilst most watercourse 96/S008 and see also a booklet named “The World Bank & Nepal’s agreements in the past did not include compliance reviews and support Arun III Hydro Project: A Case of Anti-Social Development: Urgent systems, recent treaties appear to be introducing these mechanisms, Action Appeal” prepared and compiled by G. Siwakoti Chintan and A. which should ensure implementation, and give added value to dispute Ma’anit, INHURED International Pub., June (1995), Kathmandu, avoidance efforts. Nepal. This pamphlet described every detail of the project, from its 205 World Commission on Dams (WCD), Dams and Development: A New many stages of numerous studies to its cancellation, with much Framework for Decision Making, London: Earthscan, WCD Report, explanation of the potential effect on the environment, and resettlement November 2000, p. 19. of indigenous peoples, etc. (copies on file with author). 252 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 253 several years, and her development was undermined.207 The obviously found in the SAARC region, namely the scarcity of Bank has also been blamed for dictating the adoption of water and associated issues: water conflicts remain largely 209 economic and other policies, thus exploiting developing states confined to developing states. and retarding their development. As a result, it is argued that drawing loans from the WB amounts to surrender of economic It appears that without settling major existing political sovereignty.208 However, the latter topic is not an area covered problems in the bilateral sphere, water resources co-operation by this book. cannot make the progress that might be expected. Thus, major changes are needed in governments’ outlook regarding how to 4.15 Conclusions develop relations with neighbouring countries, how to utilise these immense water resources for the common benefit, and The issue of water resources development from the standpoint how to face the challenges arising from these water problems, of bilateral and regional co-operation has been dealt with, in for which purpose a summit of the leaders of this region has which it has been seen that national effort alone cannot yield been suggested.210 Indeed, the key to the resolution of all holistic results. Co-operation is not only necessary from the national water resource problems is bilateral and regional co- point of view of money and technological capability; it is also operation. If upstream work provides any benefit to a needed because of the requirements of a watercourse itself. For downstream state, such benefit could be shared in proportion to example, in the Nepalese context, barrage, diversion and the cost, otherwise it would constitute a windfall, a benefit reservoir sites are available only in Nepal, and from such works acquired without any corresponding effort and investment. In hydropower units can be established in Nepal and India; IWL, such a windfall would be a case of unjust-enrichment, regulated flow control to mitigate flood damage, water for 211 supply in time of scarcity, and navigation facilities could also and as a result unreasonable and inequitable. According to all be developed. From these works, the needs of states could the norm of equity which takes into account socio-economic, be met and optimum benefits accrued for all. In the wet season and geographical aspects and vulnerability, Nepal is weaker there is too much water, causing havoc, but there is not a single than India socio-economically, which has led to persistent drop of water in the dry season, which in turn causes problems in Indo-Nepal relations. Thus, according to the devastation, hunger and famine. This observation leads to the principle of equitable utilisation enshrined in Articles 5 and 6 conclusion that the characteristics of developing states are of the UN Convention of 1997, India should give a high priority to Nepal’s development, with a magnanimous attitude. 207 The World Bank withdrew funding for the Sardar Sarover project in Such policies would be immensely helpful in resolving the India, and a project from Somalia, as a result of Kenya’s objections; it also refused to finance the Three Gorges project, in China, the South Antolia Project in Turkey, and the Aswan Dam in Egypt. The reasons 209 R. Clarke, Water: the International Crisis, London: Eartscan Pub., were riparian objections and the environmental disasters likely to 1991, pp. 91-92. ensure from the proposed projects. 210 Supra note 34, p. 130. 208 S. R. Chowdhury, “Intergenerational Equity: Substratum of the Right 211 Supra note 136: An upstream state may be reluctant, in the first place, to Development” in S. R. Chowdhury, Erik M.G. Denters & Paul to go ahead with its projects unless it can be assured of receiving J.M.de Waart (eds), The Right to Development in International Law, compensation for the uncaptured benefits it would send downstream; Dordrecht: Martinus Nijhoof Pub., 1992, pp. 350-359. see also the Factory of Charzow case in PCIJ Reports, (1928), p. 47. 254 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 255 outstanding problems existing between them, including the The current Indian Prime Minister, A. B. Bajpayee, is now issue of augmenting dry season flow in the Ganga by diverting directly involved in ending the bitter relations of the past the Brahamaputra through the Arun valley via Tibetan territory, between his country and Pakistan, replacing them with a good which can be achieved with Nepal’s co-operation.212 neighbourly relationship. A similar, dynamic approach needs to be adopted in the case of Nepal. A suitable model, particularly in the Indo-Nepalese sphere, is the Columbia River Treaty arrangement between the USA and According to the current energy trends, India has enough fossil Canada, which is suggested as the ideal point of reference. fuel reserves for forty years, Bangladesh for thirty years and Those benefits were shared, and the cost of the reservoir and Pakistan for about twenty years. After these periods have dam construction, along with the submergence, displacement elapsed, each country will be compelled to turn to water and rehabilitation cost, was paid by the United States.213 It is resources.216 The co-operation between Bhutan and India shows argued that such co-operation can prevent confrontation, and that both states are accruing tremendous benefits; the same that the best way of resolving international water disputes is by approach is proving successful in the Mekong Basin, in which negotiation, and concluding agreements; even submitting a Thailand guaranteed a loan on behalf of Laos from the world dispute in a court or tribunal is not proven to be the best way.214 capital market, and provided some amount in advance for the purchase of the hydropower which is being developed. Laos is However, numerous instances have illustrated how the commissioning these projects purely for export purposes, for involvement of heads of state and governments has enabled the which a regional grid has been already constructed to deliver avoidance of conflicts and facilitated agreement in many the hydropower to Thailand. This regional grid was constructed complex and chronic issues between a weaker and a more by the Mekong Commission, with the money being provided by powerful state. President Echeverria of Mexico and President the WB and the UNDP.217 There are other similar models: such Nixon of the USA resolved the salinity problem on the as Itaipu (Paraguay and Brazil) and Yacerata (Paraguay and Colorado River, which was seen as most delicate problem Argentina). In both examples, the money was borrowed from between the two countries, and it was politically difficult for the world market (the WB and the Latin American Bank), for the USA to construct such a huge project at her own cost.215 which Brazil and Argentina have provided a sovereign guaranty for Paraguay. Moreover, each project started with a capital 212 Supra note 174. See H. L. Shrestha, “SAARC, China and Pan-Asian investment of US$ 100 million, for which each country lent Unity” in U. Gautam (ed), South Asia and China: Towards Inter- Paraguay its share of the initial capital of US$ 50 million under Regional Cooperation, Kathmandu: China Study Centre, (2003), p. 59. 213 L. Teclaff, “Harmonizing Water Use and Development With Environmental Protection” in A. Utton & L. Teclaff (eds), Water in the Developing World: The Management of a Critical Resources, Colorado: Westview Press, 1978, pp. 104-105. 216 R. D. Joshi, "Nepali Hydropower and Regional Energy Needs” (1994) 214 B. R. Chauhan, Settlement of International Water Law Disputes in in 4 Water Nepal, p. 156. International Drainage Basins, Berlin: Eric Schmidt Verlag, 1981, p. 217 P. Chomchai, “Management of Tranboundary Water Resources: A 463. Case Study of the Mekong” in M. I. (ed), The United Nations at Work, 215 Supra note 210, p. 160. Westport, CT: Praeger, 1998, pp. 254-255. 256 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 257 the concessional terms.218 Any of the above models are suitable for south Asia and can be followed. However, the problem does not lie in the area of knowledge, technology or even finance; the real impediment is the lack of political will of the leaders of the region. If this can be resolved according to the norms of equity, the Himalayan waters will be at their disposal, and this could obviate the misery of poverty.

Next chapter is related with India's River-Linking Project, which analysed the legal issues involve in the project, riparian consent and the advantage from the project not only for India but for her neighbours as well. It also demonstrate the complexity in the project and the links this project from the view of regional cooperation.

•

218 H. Dhungel, “Risks and Rewards of Mega Projects: The Political- Economy of Paraguayan Hydropower” (1999), in 7 Water Nepal, Nepal, p. 25-26. see www.solar.copper.ufrj.bu/itaipu.html. Legality River Linking Project / 257 258 / International Watercourses Law and Its Application in South Asia 5.2 Magnitude of the Problem Chapter- Five The recurring droughts and floods have been the major cause of Legality River Linking Project human misery, poverty and backwardness of entire south Asia. The water resources of South Asia have not been fully utilized for the benefits of the people regardless of the acute need of the 5.1 Introduction abundant waters for the development and livelihood of the region’s people. The irony is that both natural calamities arising India and her neighbours have been unprecedently witnessing out of an excess of water as well as its scarcity are taking place recurring phenomenon of flood, drought and famine over the at the same time in different places of the same states of India years. This has been blamed for unsciencetific use of resources, and some parts of other nations as well. Sometimes, it is hard to forgetting the rule of hydrology, overuse, and unsustainable use believe how flood and drought occur simultaneously and lead and burgeoning population in comparison with the availability to destructive surpluses and also situations of acute water stress of fresh waters. The population and the availability of water do within and across states of the same region. The lack of not match in India. With 4% water resources and 15% world scientific water management and utilization in a holistic and population, which is rising and likely to touch almost in 25% in integrated manner has been blamed for this state of affairs that 2050, the situation will obviously worsen. In India per capita need not necessarily be abandoned to the vagaries of nature. availability of water was 6,008 cubic meters in 1947 and today The other factor that has been blamed for this state of affairs is it is 1,700 cubic meters and by the year 2050, it will be 1,140 the phenomenon of climate change, and its impacts on cubic meters. This is because of excess water availability in the precipitation and nature. However, even though the evidences Brahumputra basin is as high as 13,000 CM while such put forward in support of climate change may warrant further availability in Pennar area is just 300 CM.1 The paradox of research for full confirmation, it is widely believed that its flood in Assam and Bihar and at the same time misery caused implications for the erratic nature of hydro-meteorological by unprecedented long drought is another story of devastation extremes experienced recently cannot be brushed aside as mere of large section of people and property. However, R. R. Iyer speculation. Apart from this, the consequences of human non- who denied recognising the paradox of floods and drought action such as mismanagement, non-cooperation amongst states rather considers these are merely facts of geography that govern and lack of strong political to resolve these issues are also our lives. The occurrence of floods in one area, and the scarcity believed to be the contributing factors. This Chapter critically of water in arid or drought- prone areas, are two entirely deals with the issues and implications of India’s plan and separate questions and need separate resolution.2 demonstrates what the problems are and where the solutions lie from a legal viewpoint.

It is not just the predicament of a particular year but one that has been replete year after year with a loss of properties worth 1 Suresh Prabhu, "Garland of Hope: River-linking as a Solution to Water billions and a tragic toll of thousands of precious lives. Crisis" August 14, (2004), Times of India Politicians tend to voice radical slogans to end this human 2 R. R. Iyer, "Rising Rivers, Arid Lands: Interlinking will not Solve the misery when there is flood and drought, particularly during Problem" July 20, (2004) The Times of India. Legality River Linking Project / 259 260 / International Watercourses Law and Its Application in South Asia election time. Once the elections are over, and the leaders and Brahmaputra or India the Ganges, or Nepal the Kosi or Bhutan parties get elected, they tend to forget people’s miseries and go the Sunkos, as a solely national river and do whatever it wished about business as usual for personal or partisan gains. The few to fulfill the requirement within one’s territory only. This basic works that get done to ameliorate the situation are far from concept and framework has been largely ignored by the nations, adequate to cope with this enormous task. 3The little which should be seen as the crux of the problem in the sharing compensation or relief provided in the aftermath of the and allocation of shared watercourses among the nations and calamities is always insufficient. The compulsions of the ruling developing projects unilaterally against the core theme of elite in not being able to resolve these formidable challenges international law. As a major partner of these watercourses, if need to be understood before arriving at a substantial we study the law and tradition within India in its interstate conclusion and blaming someone without sufficient water conflicts, such concepts and views have been understanding. The other point of significance is that the lack of unanimously accepted and widely practiced. For instance, cooperation between states, either members of a federation or Godawari River Water dispute, Cauvery River Water dispute sovereign nations, has become the cause of suffering for all the and other disputes are the living testimonials of this area. One people of the SAARC Quadrangle.4 could question how India could behave or expect to accept conditions of allocation and sharing of waters which are against The basic point from the view of hydrology and international the norms that it has already been practicing, whether in its law is that a watercourse should be taken as a single entity, dispute with Pakistan pertaining to the Indus River Treaty, from its origins in the high Himalayas of Tibet to the point of inter-state disputes or the accepted norms in relation with the its drainage into the Ocean. Moreover, it is a rule of nature and then east Pakistan pertaining to the Karmaphuli river- along the the watercourse itself. Therefore, a nation or a state could not Asam-Meghalaya border. 6 claim such watercourse as its national wealth alone but as a Much has transpired since then and so has the political partner or a member of the basin. Thus, any development, environment of south Asia. Moreover, many things have allocation and sharing from such a shared watercourse should changed since the Koshi and Gandak river treaties with Nepal be undertaken in such a way that every state’s share will not be in the 1960s, the 1975 treaty on the commission of the Farakka infringed upon, nor any harm and injury caused to it from such barrage, the 1977 Ganges treaty and so forth. There is use and everyone should be benefited equitably. The democracy with democratic institutions in the SAARC International Court of Justice in its judgment of 1937 in the Quadrangle, which has altered the structure of governance and River Oder case resolved these issues forever, and since then, the power base of the governments as well. In this context, it is this concept has received universal recognition and is regarded not only the governments that should be heard but also civil as a rule of customary international law.5 Against this societies, NGOs, INGOs and a host of stakeholders, whose contextual setting, Bangladesh could not claim the concerns must also be accommodated. That is to say, a monopolistic and hegemonistic approach is no more palatable or tolerated so that democratic norms should somehow be 3 D. Gyawali, Water in Nepal, Kathmandu: Himal Books, 2001, pp. 87- 135. followed. Such changes in mindsets can be witnessed 4 B. G. Verghese, Waters of Hope, Oxford & IBH Pub., New Delhi, 1990, p. 374. 5 Denmark, Germany, France, Great Britain, Sweeten, Czechoslovakia v. 6 T. Upreti, "Inundation problem in Indo-Nepal Relations" April 29 Poland, PCIJ Report 1937. pp. 221-222. (2004), The Kathmandu Post. Legality River Linking Project / 261 262 / International Watercourses Law and Its Application in South Asia everywhere in the world and south Asia cannot remain floods strike havoc in Bihar.8 Prime Minister M. M Singh of unaffected from this trend. Transparency in projects with due India has been quoted as referring to it again as a joint team of consideration of the socioeconomic, seismic, hydrological, technical experts of Nepal and India are preparing to conduct climatic, environmental, human rights and other relevant issues field studies planned to be completed within three years. are key element for the successful implementation of any water However, from the national point of view, sufficient discussion sharing and allocation treaty. These issues must be integrated in and deliberations have not been held on how to protect national all international, regional and municipal projects. Moreover, the interests of both nations. The primary purpose of the proposed application of International Water Law and the norms that have project, it seems, is to relieve the people of Bihar from the evolved over time to the present with a cooperative attitude scourge of recurrent floods of the Kosi River. The expected life between and among riparian states leading to a reasonable, of the Kosi barrage at Bhimnagar is said to be almost sustainable and equitable utilization of the resources of shared exhausted. However, it is imperative that lessons must be watercourses is an inevitable element for any significant learned from the past treaties and their implementation in order consensus to materialize.7 Furthermore, the existing needs, that Nepal get a fair and equitable deal from this undertaking. future water requirement, the alternatives available to fulfill the It appears that India is expected to reverse its past policy and diverse demands, and other issues of similar nature must be work unprecedently as an equal partner for the common evaluated in the context of the prevailing economic base in benefits of both nations and Nepal should get the unhindered order to arrive at a sound conclusion. Nevertheless, these are right of access to and from the sea from the proposed Kosi the very complex issues that require meticulous analyses and navigational canal. Moreover, Nepal's upstream water rights special consideration. The key to any amicable resolution for and the consequent provisions of the proposed Sunkosi mutual benefits remains unrestricted political will and diversion project and other diversion as and when required wholehearted cooperation propelled by a positive forward must also be simultaneously recognized as Nepal's entitlement moving mindset thereby reversing the parochial approach of the pursuant to the provisions of international law and practice. past. From the Nepalese side, over-politicization of the issues, harbouring the small brother syndrome, and lip service to India While considerable parts of the country have been deluged by by the politicians and political parties to stay in power must not rivers in spate, it is common tradition for people in the other be allowed in any way to subdue the meticulous exercise and parts afflicted by drought at the same time to worship and pray due diligence that needs to be performed in optimizing to the for rains in south Asia. For example, this monsoon season only, best the benefits to be gained from the project for the nation. floods seriously affected 33 of the 39 districts of Bihar with This is invariably the urgent and by far the most pressing need enormous loss of lives and property. The proposal of building of the hour. If we understand this sensitivity and work the Kosi high dam has been in the air since the last 60 years and accordingly, both nations will be sufficiently benefited thereby has been repeated at the highest political levels whenever mitigating to a great extent the chronic diseases of flood, drought, famine and underdevelopment.

7 F. Marty, "The Pancheswar Multipurpose Project on the Mahakali River (India-Nepal), P. Lang (ed), Managing International Rivers: Problems, Politics and Institutions, Swiss Federal Institute of Technology, Zurich, 2001, pp. 160- 203. 8 Supra note 3. Legality River Linking Project / 263 264 / International Watercourses Law and Its Application in South Asia 5.3 Legal issues Involve in the River Linking Barak basin, which accounts for 60 per cent of the surface Project water resources of the country and is also rich in ground water. However, the rivers that comprise this mega-basin are Fresh water resources have remained the life-blood for nations, international watercourses and naturally, international politics communities and individuals. Without fresh water, nature as well as international law are bound to be explicitly involved cannot sustain itself and life, as we know it, cannot be in this proposed undertaking. imagined. In this sense, water as the universal solvent and sustenance of the very fabric of life has always remained an In the latest development pertaining to the concept, the inevitable substance for the survival of the people of the globe President of the Republic of India had proclaimed his as well as their socio-economic development. Water sources in government’s policy initiative on 14 August 2002, proposing a many parts of the world have been stressed to the point of networking of rivers for eliminating the scourges of the cycle of scarcity. Even in the so called water abundant areas like South drought and flood and promoting the economic advancement of Asia, its uneven distribution over time and space combined India. The proposal was first conceived by Sir Arthur Cotton with extreme weather events renders many areas exposed to and later put forward by K. L Rao and Captain Dastur at recurrent floods and cycles of drought. Countries like India, different times. In 1982, the National Water Development Bangladesh, and even Nepal have been badly affected by this Agency was set up to study the feasibility of this concept. It has annual phenomenon with a consequent loss of and heavy submitted a series of 30 links and claimed to have reportedly damage to property and infrastructures including human lives completed feasibility studies on eight links while other studies and livelihoods.9 On the positive side, the underpinnings of the are reported to be continuing with the target of completing quest for a secure livelihood and economic well being of the them very soon. Further studies on the project are being poverty ridden masses of the region also lie in the judicious conducted by a high level commission chaired by Suresh harnessing and utilisation of the available water resources. For Prabhu, former water resources minister, government of India. this, conveying water from water surplus areas to water scarce areas at the right time and place is a concept cherished by many The watercourses that flow through the territories of several well meaning planners and engineers. countries are common resources of all and should be shared equitably. In other words, every interest should be heeded and In this context, the Government of India has been benefits shared in such a manner that reconciles each divergent contemplating an ambitious plan to translate this concept of the interest to the satisfaction of each concerned country. A review River linking Project (RLP) into ground action. The idea is to of the problems and conflict of interests persisting in south Asia transfer the waters from the areas of surplus traversed by the suggests that the problem is enormous and complex on account Himalayan Rivers in the north to the areas of deficit in the of the fact that the prevailing law and the practice in the area is peninsular south by linking 37 rivers.10 The main area from not quite as clear as mathematics and the interpretation of the where the waters are to be diverted is the Ganga-Brahmaputra- rules could be different in different situations. For example, the issue of sharing of the waters of the Brahmaputra could be different from that of the Ganges. Articles 5-10 of the 1997 UN 9 Supra note 3, pp. 371-373. Convention on Non-Navigational Uses of International 10 T. Upreti, "India's River-linking Project and Nepal's Concern" (23/4/ Watercourses provide sufficient guidance on how to share and 2004), The Kathmandu Post. Legality River Linking Project / 265 266 / International Watercourses Law and Its Application in South Asia use such resources, but these rules could be applicable naturally arise hindrances, injury or harm in one way or other to differently in different situations.11 The main theme of the law the upstream and downstream riparian states. is that international watercourses should be shared in a reasonable, sustainable and equitable manner and Article 6 For instance, the implementation of the RLP would necessitate provides seventeen considerations to be applied for sharing the construction of several high dams and structures in Nepal, such resources in such circumstances.12 Furthermore, equal Bhutan, and India, which could be harmful for the environment weights have been given to all elements, which means that no including aquatic life, not to mention the highly sensitive single consideration outweighs the others. However, Article 10 attendant problems of the resettlement and rehabilitation of provides that the vital human needs, supposedly drinking use, millions of people. Furthermore, such structures would will get the top priority over other uses. Consideration of the decimate huge tracts of forests with all their biodiversity, procedural underpinnings requires a co-riparian state to give national parks and sanctuaries, religious sites, and adversely notice and information together with the copies of such plans affect the livelihoods of ethnic people. According to Suresh and studies contemplated over international watercourses in Prabhu, past Indian record on rehabilitation is deplorable.13 The order to obtain the consent of the neighbours that would be cases of other south Asian countries have worsening record. affected by such an undertaking. If such consent is not The drastic alteration in the existing hydrology and climatic forthcoming and objections are raised by riparian states, conditions could engender an environmental disaster. These are negotiation for achieving consent would be required. This some of the anticipated inevitable consequences of the process itself is very complex and could take years to complete proposed project. How India's neighbours would be benefited the exercise. or compensated for such inevitabilities, or what would be the status of the existing treaty regime and how they would be In the contextual situation of the Brahmaputra or the Ganges replaced with a new treaty regime are very staggering and river, if the drinking water needs of Bangladesh were to be intricate issues. It would be a very tricky, complex and impeded by any irrigation and other uses in Indian territory, the protracted process to negotiate and finalise a treaty in this former use must of necessity get top priority and the latter uses connection. In a milieu of democratic dispensation where cannot be justified as reasonable and equitable. In another vehement arguments for and against mammoth water resource instance, if the RLP conceived by India could hamper the projects have a right to be heeded, all stakeholders- affected existing irrigation, drinking water, navigational and other uses states, people, civil societies, NGOs, experts, political parties of Bangladesh, such work would be considered inequitable and and diverse interest groups- must be provided the opportunity unreasonable. Similar provisions would be applicable to each of to voice their concerns. Hitherto, such a process has been the riparian states of south Asia from the proposed RLP. That is taking place in India and, in a few instances, in Bangladesh. It to say, the RLP should not inflict any harm or injury to other is understood that Nepal and Bhutan have not even bothered to riparian states such as Bhutan, Nepal and Bangladesh. It is initiate such a discussion yet at any appreciable level. obvious that the anticipated repercussions of the project would go contrary to this principle. In other words, there would It is germane to shed some light on the outcome of such exercises held in India in this highly charged context. It is

11 36 ILM (1997), pp. 700-720. 12 Ibid. 13 Supra note 1. Legality River Linking Project / 267 268 / International Watercourses Law and Its Application in South Asia understood that the states of Kerala, Bihar, West Bengal, fail forever without a chance of improving or amending the Assam, Punjab, Chatisgarh and Goa have heavily criticised the situation. Clearly, she would be a loser forever. The strange and concept whilst Gujrat, Karnataka, Andhra Pradesh, Orissa and perplexing matter is that Nepal Government; political parties, Maharastra have shown only conditional consent. In essence, NGOs and civil society are very reticent on such a serious the recipients of water are in favour and the donors are dead matter of stupendous ramifications for this nation, which could against the proposed undertaking.14 Apart from this, almost all pose a very grave future threat for her. Proper studies, debates of the environmentalists, human right activists, experts and and deliberations to cross check and explore the threats as well former bureaucrats are not only against the concept but also as the opportunities confronting her bolstered by the formation rebutting that it is infeasible, environmentally damaging and of a national consensus for ensuring the national interest are asserting that it would create more problems than offer matters of prime urgency and the pressing need of the hour.17 solutions.15 Even if the Union Government succeeded in satisfying the divergent interests of these states, it would be a The reality is that water in south Asia is in surplus in some daunting uphill task to obtain riparian consents from India’s places and scarce in others. During the dry season, water is neighbours. scarce almost everywhere and, in the monsoon season a surfeit of it creates the havoc of floods. Thus, the management of this Overall, Bangladesh is dead against the project and compares water for the beneficial use of all poses a formidable challenge the concept to a macabre intrigue to render its territory into a and the complicated issues of sharing the benefits of wasteland. Hence, it would be a question of life and death for international watercourses need to be sorted out keeping all its existence.16 Moreover, Bangladesh has not only handed over interests in due focus and consideration. No doubt, there is its protest to India but also strongly opposed it at the highest asymmetry in terms of the landmass, economic prowess and political level. It has criticised that the concept is politically water requirement and compulsions of hydrology and unsound, technically infeasible and very wrong from the availability of alternative sources of water amongst the viewpoint of International Water Law and practice. This topic countries of the region.18 Moreover, the history of the past has brought about tectonic upheavals of opinion in these two cooperation in this area has not been satisfactory and replete nations; however, ironically enough, Nepal’s official stand on with bitter experiences, suspicion and examples of inequitable the issue appears to be blissfully oblivious of all this sharing. development. In fact, like the other neighbours, it could pose before her momentous questions relating to her survival and The proposed RLP, in all likelihood, is bound to severely affect further development. If she were prudent enough to take up this the interests of all riparian nations. Even the past treaties have matter seriously and strive to protect her national interests, her not been implemented in good faith and the problems that future would not be jeopardised. Otherwise, she would again emerged from their implementation have not been yet

14 U. Shankari (ed), Interlinking Rivers: Contradictions & Confrontations, A Report on electronic debate, New Delhi: Centre for the Study of the Developing Societies, 2004, pp. 24-37. 17 T. Upreti, Dimension of India's River-Linking Project" (14 & 15, 15 R. R. Iyer, "Making of a Subcontinent Fiasco" Himal South Asian, 2004), The Katmandu Post. August (2003), pp.1-8. 18 S. Aiyer, "Changing the Course" XXVII India Today, (20-1-2003), pp. 16 www.internationalwaterlaw.org 28-32. Legality River Linking Project / 269 270 / International Watercourses Law and Its Application in South Asia resolved.19 Moreover, the RLP is not targeting a single basin hydropower import/export? How can we secure the right to only, but also directly envisages to impact upon the totality of unfettered access to and from the sea from the proposed river the resources south of the Himalayan water towers. Candidly linking project and how can we amend and improve upon the speaking, this project is explicitly linked with the life and death unequal treaties of the past? However, the other issues of of the people of this region. The law could be used only as outstanding chronic problems out side this area should also guidance. Everything depends on how liberal, cooperative and improve in order to strike this deal. These are the burning friendly are these nations in order to understand others’ questions that need to be resolved in the complex negotiations sensitivities and the realities and compulsions of their that we shall be bound to enter into regarding the proposed neighbours. In India itself, apart from Tamil Nadu and grandiose project. Therefore, there are numerous threats as well Haryana, which are water scarce states, other states appear to as opportunities for us. It could even furnish the best be strongly critical and opposed to this project. Their argument opportunity to establish new relations based on equity and is based on what they would get in exchange of their water in equitability that could reverse or recompense for the unequal terms of royalty and export revenues from the beneficiaries. treaties of the past. In a nutshell, for this ambitious project to Otherwise, why should they provide their life-blood to others? become a success, it is imperative that whole hearted On the other hand, each state first wants to provide sufficient bilateral/regional cooperation and an equitable sharing of the water to its own deficit or water stressed areas. Moreover, the benefits of these resources should be ensured thereby dispelling environmentalists, human rights activists, civil societies, the miasma of past bitterness, cheating and exploitation, experts and concerned people have exhibited strong criticisms whether perceived or real, for the common future of the people and concerns over the consequences of the implementation of of south Asia. Unless this happens, the project will merely such a project. They opine that linking of rivers is a disastrous remain in the dream of Indian politicians and their acolytes.21 idea from the environmental point of view. The inter-linking of toxic rivers with non-toxic ones will have a devastating impact 5.4 Concern of Neighbours 20 on all forms of life, let alone humans. Unlike upstream neighbours Nepal and Bhutan, Bangladesh In this context, one will have to deal with some very grave has not been keep quite and become a mere spectator of the questions concerned with south Asia's interests for the present propose RLP, in her view, is the question of life and death to as well as future generations. How can we sell and buy our her existence. Comparing with the Farrakka barrage built by water for the best price? How can we fix royalty and export India in the cost of Bangladesh, she has maintained that the duties on it? How can we achieve a better settlement on our coercive diplomacy of India has created obstacles in the development of her neighbours, such diplomacy cannot bring any lasting benefits to her or her neighbours and in order to 19 Hydro electricity under the Kosi project was not commissioned, resolve the problems subsisting in the region, basin-wide irrigation benefits were not materialized and compensation were not 22 paid to the project affected people under the Kosi Agreement and in development in regional perspective is essential. That is to Gandak project lock for navigational services was not provided. Under the Sharing of the Ganges Treaty between India and Bangladesh, the assured minimum flow was not provided in 1997 dry season. 21 Supra note 17. 20 H. Thakkar, "Flood of Nonsense: How to Manufacture Consensus for 22 A. A. tutu, "The Farakka Barrage: A Diary of India's Coercive River-Linking" Himal South Asian, August (2003), pp. 1-5. Diplomacy in Practice" 1 Prasix Journal, (2003), pp. 36-40. Legality River Linking Project / 271 272 / International Watercourses Law and Its Application in South Asia say, consent and cooperation from the view of regional The success of Indus River Waters Treaty 1960 and its cooperation is requires. The historical conflicts on the sharing effective implementation even in two wars time has been of Ganges river water, which was thought to be resolved after regarded as a catalytic.24 However, there are also disputes the treaty of 1996, could not even been complied due to the recently emerging and it is interesting matter how India and extraordinary reduction of the predicted flow and the treaty Pakistan strive to resolve the issues. Pakistan has been mechanism was unable to fulfil India's obligation on that objecting the construction of Bahlihar hydroelectric project minimum flow guaranty clause of the said treaty. Worse still, maintaining that it is against the provision of the said treaty India has diverted the waters of Teesta unilaterally without whilst India is ascertaining it does not hamper existing uses or giving attention on Bangladesh legitimate share, has been reduce the volume of the waters. Other objections of Pakistan added the fuel on already complex and conflicting relations are with India's plan to divert Chenab river water in Himanchal between two neighbours. From the point of Bangladesh, they Pradesh at Basholi-Pathankot dam project, the Wullar barrage have been restricted from their legitimate entitlement in the project on Jhelum, the Dul-Hasti hydroelectric project at Ganges and as a result, Bangladesh's one third of fertile Chenab and the Sawlko dam at the same river. It is interesting territory have been converted into a desert land. Moreover, She fact that the Legislature of Jammu and Kashmir has asked the has been maintaining that India's paln to divert waters of centre to repudiate the Indus treaty and give her free hand to Brahumputra, from which her almost all territory will be develop project in this state. However, this proposal was converted into desert as a result her existence would be refused by the central Government. It is understood that the jeopardised. In a nutshell, Bangladesh has considered that the Joint River commission under the treaty, which did not cease to project could be threat to her very right to exist as a nation. If successfully working in the time of wars25 and both one consider the magnitude of this question, it is very unlikely governments are working expeditiously to resolve these that India could make her agree to commission this project until disputes. It is obvious that India appears to be seriously she rectified the past grievances and accommodate her every working to find out resolution with any water disputes with interests.23 On the other hand, it seems that without this Pakistan and reverse the position whilst dealing with undertaking, India's problem of relieving from poverty and Bangladesh and Nepal. That is to say, undermine the legitimate socio-economic development is not possible, which means she demand of these neighbours. This has been proved in several is determined to implement this project. In this potential projects implementation and water conflicts with these nations. eventuality, one can assume that cooperation from regional How this is happening could be topic of separate political perspective is the need of hour in which every nation can get its research. fair share, divergent views should change into convergence. In order to create this environment may take long time along with the completion of such huge, complex areas of studies, 24 G. T. Keith Pitman, "The Role of the World Bank in Enhancing verification and crosscheck into them by the experts of Cooperation and Resolving Conflict on International Watercourses: the international repute could consume substantial period of time. case of Indus basin" G. H Blake, W. J. Hildeslay, M. A. Pratt, Rebecca J. Ridley & C.H. Schofield (eds) The Peaceful Management of Transboundary Resources, Graham &Troatmat/Martinus Nijhoof, 1995, pp 155-165. 23 M. Asfuddowalah, "Sharing Transboundary Rivers: The Ganges 25 Salman M. A. Salman, "Good Offices and Mediation and International Tragedy" M. I. Glassner(ed), The United Nations at Work, Westport Water Disputes" Permanent Court of Arbitration, The Hague: Kluwer CT: Praeger, 1998, pp. 212-218. Law, 2003, Resolution of International Water Disputes, pp 182-185. Legality River Linking Project / 273 274 / International Watercourses Law and Its Application in South Asia

From the perspective of getting consent or making agreement asking for consent with her neighbours for the RLP, much with Nepal and Bhutan, India appears to have thought an easy wider issue than a watercourse. Things are changing rapidly. It job. So far there are not official stands or reactions from the seems that India have to accept its past mistake to stick in official source from these two nations.26 However, considering bilateralism and time is approaching to agree on the the past bitterness, suspicion and history of cooperation, it longstanding demand of her neighbours for regional seems that these nations could not give up their fair share or cooperation based on regional benefits. As things stand, sacrifice interests on that project. Apart from them, several international water law has been rapidly developing and there is huge structures/ dams/barrages are needs to be constructed in a wide body of law, which provides guidance how to resolve the territory of these nations. Eventually, huge tract of territory such issues in reasonable, sustainable and equitable manner. would be submerge, huge people should be resettled and Moreover, such law encourage for wider cooperation between rehabilitated, lot of forest, fauna will be disappear, a lot of site riparian states. for hydropower will be diminished and many injury and harm will have to be tolerated. In return, how they be benefited and 5.5 Diversions Around the Globe how the past bitterness is to be converted into fair benefit are the thorny questions need to be answered. In a nutshell, it is a There are several diversions around the globe, for example very complex issue that needs long exercises from the part of Tennessee Valley Authority in which seven states have been India itself. Time has changed and so the people. In order to get equitably benefited in the US, as a result of this diversion this thing done not only governments but also the civil economy and water needs of these federal members have societies, stake holders and people should convince that they satisfied and this diversion has been taken as a success story in have got a fair share for the contribution they have been making the world. Three Georges dam and diversion of mighty Yellow for the benefit provided to India. river in China, one of the biggest multipurpose project, has predicted to contribute the elimination of flood, drought, and Robert McNamara, then President of the World Bank has scarcity of hydropower in China. The GAP, Southeast Antolia proposed to Bangladesh, (which has welcome the idea), and project in Turkey, which has been implementing stage with the India to mediate dispute and involve in striking a treaty in the cost of $32 billion. The project involved with 495 separate Ganges River between the riparian states, as in the Indus projects includes 32 dams on the Tigris and Euphrates rivers, Treaty.27 However, India has been alleged to refuse the 19 hydroelectric projects and more than 1000 Kilometres of proposal and insisted to resolve every issue in bilateral spheres. irrigational canal which provide waters to over 8.5 million Now, India has been reversing its earlier stand and probably hectares of land.28 The huge diversion of the Syr Darya River in the central Asia state of former Soviet Union prevent the 26 Spokesmen of Ministry of Nepalese Water Resources and Foreign water reaching to the Aral sea, has contributed to meet waters Affairs quoted as saying that Nepal has no knowledge of India's River demand in these states at the same time caused tremendous project, (29-7-2003) the Kathmandu Post 27 S. M. A. Salman & K. Uprety, Conflict and Cooperation on South Asia's International Rivers: A Legal Perspective, the Hague: Kluwer 28 Aron Suffer, Rivers of the Fire: The Conflicts over Water in the Middle Law, 2003, p. 198. East, New York: Rewman & Littlefield Pub, 1999, pp. 82-93. Legality River Linking Project / 275 276 / International Watercourses Law and Its Application in South Asia environmental disaster.29 However, the harm/injury caused by about the project nor sought any consent or provided copy of these diversion are erroneous regardless the fact that huge such studies. The claim made by Suresh Prabhu that he has efforts have been undertaken to reduce and mitigate such consulted with the Nepalese side is a false matter neither Nepal harms. But the harms were overweighed by benefits except in has given positive signal about the project nor got any studies, the case of Aral Sea. Those who favour the RLP are insisting intent or sought consent..32 Such matter only helps to create that such diversion have been contributing the socio-economic negative environment. If all neighbours get their fair share and development of nations why not in India?30 However, diversion benefits equitably nothing is impossible in this context but it is and construction of dams are not encouraged at all but the basic India turn to change her unprecedently and heed the legitimate principle of them is that minimum harm/injury is to be accepted demand of her neighbours. From the part of her riparian and such harm must be overweighed by the benefits.31 neighbour, they also need to over politicise the matter, must Furthermore, there is an increasing trend in the west in which understand the reality, and must be prepared for broader instead of construction of new dam they are destroying regional cooperation for the elimination of chronic poverty. In numerous dams to reverse the environmental and other harms order to get this objective creation of a regional level water caused by these dams. institution to facilitate and avert further suspicion and prejudice to each other is essential. If one see the example of Nile Basin 5.6 Conclusions Initiative (NBI), which is working to end the past negative environment and work for the mutual benefits of ten riparian If the Indian political leadership really wish to fulfil the water nations at the financial assistance of the UNDP, the World demand and get rid from the recurring phenomenon of floods, Bank and Canadian International Development Agency, could drought and famine then she need to change her past attitude, be catalyst for the beneficial use of south Asian water negotiate in such a way that every interests are heeds and create resources.33 However, numerous instances have illustrated how a win-win situation to all riparian neighbours. The benefits the involvement of heads of state and governments has enabled should allocate fairly so that every demand of her neighbours the avoidance of conflicts and facilitated agreement in many could be meet as her own requirement, Bangladesh should get complex and chronic issues between a weaker and a more augmented water in dry season, hydroelectricity should reach to powerful state. President Echeverria of Mexico and President them in a fair price, floods should be checked and other Nixon of the USA resolved the salinity problem on the benefits should divide. Similarly upper riparian Nepal and Colorado River, which was seen as most delicate problem Bhutan should be treated as similar manner. Until now, neither between the two countries, and it was politically difficult for India has not provided noticed pertaining its intention and plan

29 S. McCaffrey, "Waters Disputes Defined: Characteristics and Trends 32 News appeared in the 2/3/2003, in Hindustan Express saying the above for Resolving Them" Resolution of International Water Disputes, the cannot be proved because the spokesmen of Ministry of Water Hague: PCA, Kluwer Law, 2003, pp. 71-72. Resources and Foreign affairs refused the claim, see the Katmandu 30 Supra note 1. Post 29/7/2003. 31 WCD, Dams and Development: A Framework for Decision Making, 33 J. Brunnee & S. J. Toope, “The Changing Nile Basin Regime: Does London: Earthescan, pp 8-10. Law Matter ?” (2002) in 42 HILJ, pp. 105-159. Legality River Linking Project / 277 278 / International Watercourses Law and Its Application in South Asia the USA to construct such a huge project at her own cost.34 The former Indian Prime Minister, A. B. Bajpayee, had been directly involved in ending the bitter relations of the past between his country and Pakistan, replacing them with a good neighbourly relationship. A similar, dynamic approach needs to be adopted in the case of the members of SAARC Quadrangle nations. That is the way out for the success of RLP. Otherwise, Mark Twain's quotation "Whisky's for drinkin and water's for fightin over" will be applied in South Asia.35

•

34 R. Clarke, Water; The International Crisis, London: Earthscan, 1991, p. 160. 35 www.twainquotes.com/WaterWhisky.html 278 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 279 The present circumstance of confrontation between Nepal and Chapter- Six India is not conducive to the enhancement of co-operation for equitable utilisation of water resources. For example, India has Conclusions and Recummendations constructed a network of reservoirs and dams along the whole Indo-Nepal border without giving prior notice to Nepal, thereby inundating huge areas of Nepalese territory. 2 No mitigation, 6.1 Conclusions elimination or compensation has been provided for such harm. This is a flagrant breach of IWL.3 The study suggests that in In the earlier chapter, an analysis of IWL, and its application to order to attain the maximum benefits for all the riparian states, the water resources available in south Asia has been made. international and regional cooperation is the first pre-condition. Each Chapter analysed the problems associated with realising By doing so, poverty can be reduced, sustainable development the promising potential of the resources in a coherent manner. undertaken; dependence within interdependence can be set out The study has indicated the significance of water, the and the cloud of distrust can be converted into prosperity.4 magnitude of the problems, the manner in which they could be resolved, and the tremendous gains that would be realised from Chapter two evaluated and demonstrated the long efforts the judicious utilisation of these resources. Of the four exerted in the development and codification of IWL. There are principles that have emerged in IWL, i.e. territorial sovereignty, several instruments that deserve universal application such as territorial integrity, prior appropriation and equitable utilisation, UNCIW. The exact application of those instruments, however, I advocate the wider acceptance of the equitable utilisation could vary depending upon the specific circumstances. Each principle. Equity, which is the central theme of this book, has watercourse has unique circumstances; 5 a resolution suitable the ability to accommodate every interest and create win-win for each set of circumstances is highly desirable. Even though situations out of complicated conflicts between contestant the law is the same, it requires greater flexibility in the use of states and communities. discretion and interpretation for a just and fair resolution,

depending upon the specific nature of the problem. 6.2 Summary of Findings

The first Chapter introduced the aims of this thesis and assessed 2 As demonstrated in Chapter Four, India is constructing new reservoirs the significance of the water resources of Nepal and their and dams which have submerged a huge amount of territory in Nepal. immense potential for the prosperity of that country as well as Neither notification was given, complaints heard nor compensation her south Asian neighbours. As a regional power, India has a paid. Also see staff, “India completed Mahalisagar reservoir project” great role to play but she must give attention to Nepal’s The Kathmandu Post 1 July 2003, staff, “SCIP Failed to resolve dispute”, The Kathmandu Post 13 August, 2003; India refused to development in harmony with the norms of equity envisaged in acknowledge the harm caused by the reservoirs constructed without the Articles 5 and 6 of UNCIW. The best way to resolve water consent of the Standing Committee for Inundation Problem (SCIP). 1 conflicts is by negotiation rather than judicial settlement, in 3 Article 5 (Equitable Utilisation) and Article 7 (No Harm Rule) line with a liberal approach of equity. UNCIW, 36 ILM (1997), p. 722. 4 B. G. Verghese, Waters of Hope, New Delhi: Oxford & IBH Pub., 1990, pp. 385-393. 1 B. R. Chauhan, Settlement of International Water Law Disputes in 5 H. A. Smith, The Economic Use of International Rivers, London: P. S. International Drainage Basins, Berlin: Eric Schmidt Verlag, 1981, p. 465. King & son, 1931, p. 121. 280 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 281

The law developed so far is based on the principle of Chapter three deals with the origin, development and reasonable and equitable utilisation. Some argue that it is too application of equity. Furthermore, application of equity in the ambiguous a principle with major problems in its interpretation sharing of natural resources, the practice of the ICJ and its and application. 6 There are, however, several guidelines in predecessor, and other municipal courts and tribunals have Article 6 for the proper interpretation and implementation of been analysed. The research findings suggest that equity has the provisions of such laws. The other fact is that the law is become the pivotal point for bridging any gaps between only a tool, the dominant factors are human will and desire to contestants views or principles. The role of equity has proven consistently address and harmonise the interests of the its capacity to prevent conflicts in such a way that every contestant states. The UNCIW was adopted as a holistic, interest is addressed with a rational resolution of the problems framework law in 1997, even though this UN vote was not that lead to conflict. In order to fill the chasm between poor unanimous. Several states still entertain conflicting views on states and the developed states, to balance and preserve the certain provisions of this law. For example, it has been argued interests of present and future generations, to carry out that Article 5 of the UNCIW favours upstream states, whilst development without adversely damaging the environment, and Article 7 favours downstream states. Similarly, which rules to accommodate all interests in a shared resource, equity has should prevail in the event of a conflict “equitable or no harm remained a central issue. 10 Equity has given flexibility and rules” remains a disputed issue. 7 Moreover, even in the strength to decision-makers in harmonising the divergent application of these two rules, due to the ambiguity and interests of disputant parties. However, it is only a tool; its vagueness surrounding them, there are still conflicting ideas.8 application requires the utmost measure of fairness with a However, the rule of equitable utilisation, which is the core law, profusion of liberal attitude and sound discretion. contains guidelines and the basis for its application, but it requires ongoing cooperation between states for its effective The political use of equity in human rights, environment and implementation.9 sustainable development issues must be differentiated from the legal use of equity. The legal use of equity in IWL has been developed by the Supreme Court of the United States and some other European states in the twentieth century in the resolution of conflicts involving the allocation and sharing of water 6 L. Caflisch, “Regulation of the Use of International Watercourses” in S. between federal states and provinces.11 The PCIJ and the ICJ M. A. Salman & L. B. de Chazournes (eds), International have contributed immensely to its application and development Watercourses: Enhancing Cooperation and Managing Conflict, Washington DC: World Bank Technical paper no 14, p. 16; also see C. in their decisions for sharing and delimiting the Continental B. Bourne, “The Primacy of Equitable Utilisation in the 1997 Shelf and disputed issues arising over it. The LOSC 1982 and Watercourse Convention” (1997) in XXXV CYBIL, pp. 215-231. the UNCIW have codified equity as a rule of customary 7 S. C. McCaffrey, The Law of International Watercourses: Non- international law. Furthermore, resolution of both existing and Navigational Uses, Oxford: Oxford University, 2001, p. 308. future conflicts are also expected to be resolved by the 8 R. St. McDonald, “Charles B. Bourne: Scholar, Teacher and Editor, Innovator in the Development of International Law of Watercourse” application of equity. In fact, equitable utilisation has become (1996) in XXXIV CYBIL, pp. 53-87. 9 J. Brunnee & S. J. Toope, “The Changing Nile Basin Regime: Does 10 D. French, “International Environmental Law and the Achievement of Law Matter?” (2002) in 43 HILJ, pp 131-151; also see supra note 1, p. Intragenerational Equity” (2001) in 31 ELR, pp. 10469-10485. 467. 11 Demonstrated in Chapter two. 282 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 283 the cornerstone of resolution of the issues on shared natural framework of the concept of, ‘dependence within resources, including shared watercourses. 12 The tremendous interdependence’. 17 Past experiences have been marred by success in new technological innovations has the potential to confrontation rather than improved by meaningful co-operation. help avert conflicts. Examples are, re-use of water,13 distillation Such attitudes, however, appear to be changing, most recently technology, and technologies to deliver water over great in the Nile basin 18 and south Asia. 19 It is essential to take distances. Some ambitious propositions that can be cited in this advantage of such a positive situation.20 As a result of past context are: Turkey’s plan to deliver waters to the whole relations shrouded by the miasma of negative attitudes of Middle East, cloud shedding and unnatural precipitation suspicion, each state is cautious and doubtful of the other.21 programmes as undertaken presently in the US and Israel, This research has indicated the implications of co-operation. potential water delivery, and use of Antarctica's and also the For its achievement, however, a radical change in working as high Himalaya's waters.14 well as in thinking is urgently required and the leaders of this region must undertake radical change with charismatic Chapter four dealt with the issues of Nepal and regional co- leadership.22 operation in south Asia. It assessed the problems and prospects, and suggested measures to solve problems in such a way that Chapter five has demonstrated the legal issues involved in the every nation can win and no one loses. 15 A historical River-Linking Project of India, its relevance to get rid of perspective on bilateral relations, and water relations in recurrence flood, drought and famine, potential advantage from particular have been given and evaluated in the light of present the project to India and her neighbours and the role of regional challenges. The potential benefits to Nepal, India, Bangladesh cooperation. The best way to tackle the poverty in south Asia and Bhutan in bilateral and regional perspectives are very has been is depend how states can cooperate with others, promising. However, the reality and the existing framework of understand other sensivity and how law help them to co-operation is far from satisfactory.16 There are opportunities implement this huge project. for numerous trade-offs amongst these nations, whereby the misery of poverty could be overcome by prosperity within the 6.3 Implications of Water Scarcity

12 S. C. McCaffrey and M. Sinzela, “The United Nations Convention on The alarming increase of the world’s population poses a threat International Watercourses” (1998) 92 AJIL, p. 106. to the maintenance of the availability and distribution of these 13 Singapore is planning to substitute at least 2% of imported water by recycling waste water by the year 2004, www.internationalwaterlaw.org. 17 B. C. Upreti, Politics of Himalayan River Waters, New Delhi: Nirala 14 R. Clarke, Water: The International Crisis, London: Earthscan Pub., Pub., 1993, pp. 158-178. 1991, p.110. 18 Supra note 9, p. 159. 15 B. Subba, Himalayan Waters, Kathmandu: Panos South Asia, 2001, p 19 The Power Purchase agreement on west the Seti project and the river 225; also see B. G. Linking Project are evidence of it. Vershese, “Regional Cooperation for Optimal Basin Development” in 20 S. P. Subedi, “The Hydro Politics of South Asia: the Conclusion of the B. G. Verghese & R. R. Iyer (eds) Harnessing the Eastern Himalayan Mahakali and Ganges River Treaties” (1999) 93 AJIL, p. 962. Rivers: Regional Cooperation in South Asia, New Delhi: Konark Pub., 21 B. Crow, A. Lindquist & D. Wilson, Sharing the Ganges: the Politics 1994, pp. 263-280. and Technology of River Development, New Delhi: Sage Pub, 1995, p. 16 S. D. Muni, India and Nepal: A Changing Relationships, New Delhi: 222. Konark Pub., 1996, pp. 161-176. 22 Supra note 4, p. 393. 284 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 285 precious water resources: withdrawals are expected to rise by instead of one way criticism and over-politicising.28 Nepal must 31% by 2020 and groundwater resources are being replenished convince and persuade its over-bearing neighbour to promote 23 only at a rate of between 0.1% and 0.5%. There are and preserve the interests of both countries, and India must stop predictions that the next war will be fought over water, if the damming the rivers on the Indo-Nepal border and causing the international community does not work hard in unison by upstream states significant harm. If there is the political will promptly and prudently taking into account the interests of all, among the south Asian nations and the required co-operation equally.24 Such a gloomy picture presents either a recipe for conflict or an incentive to co-operation. from the international community in terms of finance, technology and skill, the other modes of co-operation are 29 However, the key to regional as well as bilateral cooperation within the reach of south Asia. The Mekong Basin and largely depends on how India, as a regional power willing to be Southern African states have adopted the concept of regional a member of Security Council of the United Nations, 25 grids to trade off hydroelectricity for the investment of reconciles its views and aspirations in addressing the similar multilateral agencies. Thailand has not only guaranteed the interests of its neighbours.26 Moreover, India’s traditional view purchase of Lao’s hydroelectricity but also provided a of benefiting at another's expense, as alleged, must be changed sovereign guarantee to the consortium of international banks 30 into the concept of good neighbourliness, a cooperative attitude, and other lending agencies to allow the project to proceed. and incorporate equitable sharing of shared resources. The There are several models in the bilateral and multinational same attitude must be adopted by Nepal and other neighbours. spheres as indicated in Chapter two, any of which could be The positive aspects of the past treaties must also be recalled27 followed.

28 D. Gyawali, Water in Nepal, Kathmandu: Himal Books, 2001, pp. 53- 23 Staff, “Ecological Decline far worse than official estimates”, The 65: The Nepalese Parliament ratified the Mahakali treaty, however, it Guardian 26 August 2002, p. 4, also see United Nations, then passed a stricture (by both Houses of Parliament). breaching the Comprehensive Assessment of Freshwater Resources of the World, Treaty’s provision, and sought incorporation of the terms of the 1997, Geneva: UN Pub. strictures into the Detail Project Report, which obviously prevents 24 Supra note 7. A Vice President of the World Bank, Ismail Serageldin, progress in executing the Treaty. who thought water a catalyst for peace, predicted in 1995 that ‘the wars 29 M. R. Josse, “The Case for New Thinking” (1994) in 4 Water Nepal, p. in the next century will be over water.’ 260: Then British PM James Callaghan and then US President Jimmy 25 C. D. Mass, “South Asia: Drawn Between Cooperation and Conflict” Carter were quoted as saying that their nations were eager to help in in E. Gonsalves & N. Jetly (eds), The Dynamics of south Asia: utilising Himalayan water resources. Regional Cooperation and SAARC, New Delhi: Sage Pub., 1999, p. 67. 30 P. Chomchai, “Management of Transboundary Water Resources: A 25 C. D. Mass, “South Asia: Drawn Between Cooperation and Conflict” Case Study of the Mekong” in M. I. Glassner (ed), The United Nations in E. Gonsalves & N. Jetly (eds), The Dynamics of south Asia: at Work, Westport, CT: Praeger, 1998, pp. 245-255; also see Regional Cooperation and SAARC, New Delhi: Sage Pub., 1999, p. 67. www.internationalwaterlaw.org: Laos has signed a deal with a 26 S. P. Subedi, “Indo-Nepal Relations: The Cause of Conflict and Their consortium to build and operate the Nan Theun Project (1,070 MW Resolution” in S. K. Mitra & D. Rothermund (eds), Legitimacy and hydroelectric project) in which Thailand is the sole buyer. The ADB Conflict in South Asia, New Delhi: Manohar, 1997, p. 240. said Laos earned $ 112 million from electricity exports in 2000, one 27 A. Mukarij, “Is Destabilization the Name of the Game” in A. Sen (ed) third of the country’s total exports and its biggest export item. Also see India’s Neighbours: Problems and Prospects, New Delhi: Har-Anand, South African Power Pool, common electricity for 14 African states 2001, p. 115. www.eia.doe.gov/emev/cabs/sadc.html. 286 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 287 6.4 Changing Perspectives commonly made by all the small and vulnerable nations of south Asia. However, in 1996, Nepal and Bangladesh managed There are some more positive indications which suggest that to conclude separate treaties with India, thereby removing their improved attitudes are being developed in the area of co- long entertained complaints and grievances over the Mahakali 34 operation. The recently proposed Arun III, Lower Arun and and the Ganges rivers respectively. In the case of Nepal, Upper Arun projects, altogether 1,050 MW, are being however, the positive circumstance created by the Mahakali considered for implementation through bilateral arrangement, treaty is not being reaped because of non-implementation of the with the involvement of public power utilities and private project due to differing views on how to implement the treaty institutions in India and Nepal. The ADB which has been regime. Other nations are ready for utilising this resource, if involved as a facilitator, had expressed its preparedness to India were ready to address its neighbour's interests in a 35 provide the necessary amount of loan money, not only to carry reasonable and equitable manner. It is worth mentioning that th out the feasibility studies but also to implement the project.31 in the 19 century, strong countries wanted weak neighbours st Furthermore, the West Seti export purpose hydroelectric project, they could dominate. In the 21 century, strong countries will which is being planned for development by the Australian benefit from neighbours who are prosperous and democratic. Snowy Mountain Electric Company (SMEC), has been Troubled neighbours export problems whereas healthy 36 permitted to have an MOU with Power Trading Corporation neighbours promote the region's vitality, growth and peace. (PTC), the Indian Government’s Power Purchasing Company. Additionally, in a U-turn in its policy on water sharing issues, Successful negotiations to obtain a power purchase agreement India is contemplating a grandiose project linking 37 rivers, have been recently concluded. It is expected that after its constructing 27 big dams and diverting 141,288 million cubic success, a new cooperative dimension in Indo-Nepal water metres of water through a network of 4,777 km of canals. The resources relations will be opened.32 As expected the SMEC River Linking Project will cost Rs. 560,000 crore. In this and PTC has struck a power purchase agreement at US$ Cents project, it is hoped that the riparian consent and co-operation of 4.865 per unit rate and the project is going to be started from Nepal, Bhutan and Bangladesh will be sought and every 37 this year. 33 Similar positive development expected to occur interest heeded so that past bitternesses will be eliminated. If between India and Bangladesh as well. the project were to be executed in this manner, it is likely that the mistrust and bitterness of the past would be reversed, as Apart from this, SAREE, SAGQ, SASEC and other institutions every complaint would be accommodated. The grievances working for expanded regional cooperation are emerging. The suffered by the smaller states for so long could be resolved allegation that everything hinges on the Indian attitude is

31 Staff, “ADB co-operation on water projects”, The Space Time Daily, 34 Supra note 20, p. 958, also see, S. M. A. Salman and K. Uprety, 18 September, 2002, quoted the country Director of the ADB stating “Hydro-Politics in South Asia: A Comparative Analysis of the its readiness to provide any type of co-operation to implement these Mahakali and Ganges Treaties” (1999), 39 NRJ, pp. 333-335. projects. 35 Supra note 15, pp. 188-195. 32 www.internationalwaterlaw.org ‘SMEC strikes a deal with Indian 36 R. B. Zoellick, “NAFTA: A Successful Model of North South government’. Relations” in www. usembassy-mexico.gov/sbfnafta. 33 Staff, “SMEC concluded an agreement with Power Trading 37 S. Aiyar, “Changing the Course” (2003) in XXVII India Today, Corporation of India.” Kantipur (in Nepali)10 December 2003. January 20, pp. 28-32. 288 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 289 forever, only if their interests were accommodated in such a hydropower as a source of clean energy will be encouraged, grandiose enterprise. unfortunately, no timetable is provided. 42 As maintained by Gerhard Schroder, the German Chancellor, global warming is 6.5 Implications and Future Research no longer a matter for scepticism, it has become a reality. He further argues that there can be no global security without an In this section, I will consider the implications of this study for agenda for global equity and that developing countries require future scholarship in two areas, poverty reduction and the MDG. the co-operation of developed nations to carry out ambitious Efforts of the international community were initiated in 1972 in energy projects.43 Stockholm, further strengthened in Rio de Janeiro through the

Earth Summit in 1992, and WSSD, signifying the importance of freshwater not as a separate issue but as an integrated part of To eliminate poverty in the least developed and geographically the whole environment, and the commitment of the world to handicapped nations, the international community should it.38 change existing policies and programmes so as to provide special treatment and concessions on investment, trade, The issue of water is explicitly related to the human rights of environmental obligations and financial assistance. Poverty has people, without which life cannot be imagined.39 These rights been identified as a cause of civil war and terrorism, and is a are safeguarded by the provisions of Article 10 of the 1997 general hindrance to world peace and prosperity. For example, UNCIW, stating that priority will be provided for “vital human in Nepal the seven year Maoist insurgency has led to the deaths needs.” 40 Moreover, the development of renewable energy for of over 9,000 people and the loss of billions of rupees worth of 44 reducing global warming is on the agenda for the international property. Thabo Mbaki, the South African President, has community.41 MDG’s and the recent WSSD have set a target of rightly suggested at the (WSSD) in Johannesburg) that until the halving the number of people presently deprived of potable gap between the haves and have-nots is filled, the fuelling of 45 water, proper sanitation and clean energy from two billion to global terrorism will continue. World poverty including that one billon by the year 2015. In context of the statement that of south Asia must be eradicated by utilising these immense water resources. In this effort, the rich states must favour the weaker states in order to eradicate the hardship of poverty, 38 D. Harrison, “America bows to summit demand on sanitation for the world’s poor” The Daily Telegraph, 3 p. 4, September 2002. The UK’s pursuant to the notion of equity. In the context of India and Environment Secretary Margaret Beckett is quoted as saying that the WSSD has been largely successful and illustrated the significance of 42 P. Brown & J. Vidal, “Summiteers plant their flags in the foot hills.” p. ‘multilaterism’. 13, The Guardian, 4 September 2002. 39 S. McCaffrey, “A Human Right to Water: Domestic and International 43 P. Brown, “The US must play its part” p. 18, The Guardian August 30, Implications” (1992) 5 GIELR, pp. 1-23. 2002. 40 UNCIW, 36 ILM (1997), p. 722. 44 On human rights implications of Nepal see “Human Rights and 41 J. Vidal & P. Brown, “Meeting was sell out” The Guardian, 4 Security” (14 February 2000) at www.amnesty.org. September 2002, pp. 1-3, 2002. It is massive blow for the renewable 45 P. Brown & J. Vidal, ‘End seas of poverty’, The Guardian, 27 August energy plan. Main achievements were setting the target of halving the 2002, p. 3. John Pronk, Envoy of UN Secretary General to the WSSD number without basic sanitation and drinking water by 2015, and also is quoted as saying that the poverty of developing countries should be halving the 1.2 billion who live on less than $1 a day. addressed by the help of developed states. 290 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 291

Nepal, the former, being better off than the latter, should give market. The provision of modern technology to provide quick priority to the development of it less developed neighbour, and dependable energy is related to the water resources Nepal. This is also a finding of this research. A world order available in south Asia. characterised by equitable development and provision of services to the people of developing nations like those enjoyed This study shows that application of the principle of equity and by the people of the developed nations is indispensable to the rule of ‘reasonable and equitable utilisation’ will help keeping the peace, harmony, and welfare of this planet. Poverty unravel the intricate and complex problems associated with the has been blamed for the Maoist uprising. Similar problems harnessing and sharing of Himalayan waters. As stated in exist across other parts of south Asia. Thus, in order to Chapter three, the principle of equity has the ability to reconcile interests of all states by considering socio-economic and other establish an equitable society in these countries, broadening the relevant factors. The norms associated with it will help scope of the MDG’s, is urgently required. The issue of clean maximise the benefits to all the nations concerned. Such a energy such as hydro-energy and the supply of potable water mindset on the part of the regional and sub-regional partners and sanitation service are linked with the freshwater issue. would ensure justice and prosperity for not only Nepal but the Nepal requires cooperation without conditions (imposed as whole of south Asia. riparian consent) from western governments and multilateral institutions. These issues require further research. The other • impediment for Nepal, regarding the utilisation of its resources, is the lack of its ability to generate power at competitive prices. 46 The private sector should be encouraged to supplement the public sector so that cheap energy generation and competitive marketing can be undertaken. 47 Enhanced technology, competitive energy prices (as required and set by the market) and maximisation of efficiency are essential to ensure competitiveness. Alternative markets such as China and Bangladesh need to be explored so that India is not the sole

46 Supra note 28, p. 30: Government-developed hydropower in Nepal has cost an average of $ 2800/kw while private generation costs are $ 1000/kw; see S. Rana, “Don’t Blame Private Power Producers” in (2002) September, 111 Nepali Times; also see M. Pradhan & S. B. Pun, “Private Sector Participation in the Power Sector Lesson Learnt/Unlearnt so far” 14-20 (2003) February, in 22 Spotlight, p. 5.; also note “Chilime begins production” in The Kathmandu Post 26 August 2003. 47 S. B. Pun, “The Evolving Role of Public and Private Institutions in the Nepalese Power Sector” in (1999) WECS Annual Report, pp. 38-49. 292 / International Watercourses Law and Its Application in South Asia Appendix / 293 1. DETAILS OF THEH PROJECT Appendix (i) The barrage is located about 3 miles upstream of Hunuman Nagar town. (ii) The general layout of the barrage, the areas within Appendix- 1 afflux banks, flood embankments, and other protective The 1954 Agreement on the Kosi Project works, canals, power house and the lines of communication are shown in the amended plan (as revised in 1966) 1 annexed to this agreement as Amended Annexure A. Amended agreement between His Majesty’s Government of (iii) Any construction and other undertaking by the Union Nepal(hereinafter referred to as ‘HMG’) and the Government in connection with this Project shall be planned and of India (hereinafter referred to as the ‘Union’) concerning the carried out in consultation with HMG. Kosi Project. Provided that such works and undertakings which, WHEREAS the Union was desirous of constructing a barrage, pursuant to any provision of this Agreement require headworks and other appurtenant work about three miles the prior approval of HMG shall not be started without upstream of Hanuman Nagar town on the Kosi River with such prior approval; afflux and food banks, and canals protective works on land And further provided that in situation described in lying within the territories of Nepal for the purpose of flood Clause 3(iii) and Clause 3 (iv) intimation to HMG control, irrigation, generation of hydro-electric power and shall be sufficient. prevention of erosion of Nepal areas on the right side of the (iv) For the purpose of Clause 3 and 8 of this Agreement river, upstream of the barrage (hereinafter referred to as the land under the ponded areas and boundaries as the ;Project;) indicated by the plan specified in the sub-clause(ii) AND WHEREAS MHG agreed to the construction of the said above, shall be deemed to be submerged. barrage, headworks and other connected works by and at the cost of the Union, in consideration of the benefits arising 2. INVESTIGATION AND SURVEYS therefrom and a formal document incorporating the terms of the (i) Whenever the Chief Engineer of Kosi Project, th April Agreement was brought into existence on the 25 , 1954 Government of Bihar may consider any survey or and was given effect to; investigation to be required in connection with the said AND WHEREWAS in pursuance of the said Agreement Project, HMG shall, if and in so far as HMG has various works in respect of the Project have been competed by approved such survey or investigation, authorize and the Union while others are in various stages of completion for give necessary facilities to the concerned officers of which HMG has agreed to afford necessary facilities; AND WHEREAS HMG has suggested revision of the said the Union or other persons acting under the general or Agreement in order to meet the requirements of the changed special orders of such officers to enter upon such land circumstances, and the Union, with a view to maintaining as necessary with such men, animals, vehicles, friendship and good relation subsisting between Nepal, and equipment, plant, machinery and instruments as India, has agreed to the revision of Agreement. NOW,THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1 Not reproduced here. 294 / International Watercourses Law and Its Application in South Asia Appendix / 295

necessary to undertake such surveys and investigations. 3. AUTHORITY FOR EXECUTION OF WRKS AND Such surveys and investigations may comprise aerial USE OF LAND AND OTHER PROPERTY and ground surveys, hydraulic, hydrometric, (i) Provided that any major construction work not hydrological and geological surveys including envisaged in the emended plan (Amended Annexure- A) referred to in clause I (ii) shall require the prior construction of drill holes for surface and sub-surface approval of HMG, HMG shall authorize the Union to exploration, investigations for communications and for proceed with the execution of the said project as and materials of construction; and all other surveys and when the project or a part of the project receives investigation necessary for the proper design, sanction of the said Union and notice has been given construction and maintenance of the barrage and all its by the Union to HMG of its intention to commence connected works mentioned under the Project. work on the respective constructions and shall permit However, investigation and surveys necessary for the access by the Engineer and all other officers, servants, general maintenance and operation of the Project, and nominees of the Union, with such men, animals, inside the project area, may be done by the Union after vehicles, plant, machinery, equipment and instruments due intimation to HMG. as may be necessary for the direction and execution of In this agreement, ‘the project area’ shall mean the the respective constructions, to all such lands and area acquired for the Project. places, and shall permit the occupation, for such period as may be necessary, of all such lands and (ii) The provisions of sub-clause (i) of this clause shall places as may be required for the proper execution of also apply to surveys and investigations of storage the respective constructions. dams or detention dams on the Kosi, soil conservation (ii) the land required for the purposes mentions in measures, such as check dams, afforestation, etc Clause3(i) above shall be acquired by HMG and required for a complete solution of the Kosi problems compensation thereof shall be paid by the Union in in the future. accordance with the provisions of clause 8 hereof. (iii) The surveys and investigations referred to in sub- (iii) HMG shall, upon prior notification, authorize officers clause (i)and (ii) shall be carried in co-operation wit of the Union to enter on land outside the limits or HMG. boundaries of the barrage and its connected works in (iv) All date, maps, specimens, reports and other result of case of any accident happening or being apprehended surveys and investigations carried out by or on behalf to any of the said works and to execute all works of the Union in Nepal pursuant to the provisions of which may be necessary for the purpose of repairing or this clause, shall be made available to HMG freely and preventing such damage. Compensation, in every case, without delay. In turn, HMG shall, upon request by the shall be tendered by the Union through HMG to the Union, make available to the Union all data, maps, owners of the said land for all accidents done to the specimens, reports and other results of surveys and same in order that compensation may be awarded in investigation carried out by or on behalf of HMG in accordance with clause 8 hereof. Nepal in respect of the Kosi River. 296 / International Watercourses Law and Its Application in South Asia Appendix / 297

(iv) HMG will permit the Union to quarry the construction 5. LEASE OF THE PROJECT AREAS materials required for the project from the various (i) All the lands acquired by HMG under the provision of deposits at Chatra, Daran Bazar or other place sin clause 3 hereof as of the date of signing of these Nepal. amendments shall be leased by HMG to the Union for a period of 199 years from the date of these 4. USE OF WATER AND POWER amendments at an annual Nominal Rate. (ii) The rent and other terms and conditions on which land (i) HMG shall have very right to withdraw for irrigation for Western Kosi Canal shall be leased by HMG to the and for many other purpose in Nepal water from te Union pursuant to this Agreement shall be similar to Kosi River and from the Sun-Kosi river or within the those under sub-clause (i). Kosi Basin from any other tributaries of the Kosi River (iii) The rent and other terms and conditions of any other as may be required from time to time. The Union shall land to be leased by HMG to the Union pursuant to have the right to regulate all the balance of supplies in this Agreement shall be fixed by mutual agreement. the Kosi Roiver at the barrage site thus available from (iv) At the request of the Union, HMG may grant renewal time to time and to generate power in the Easter Canal. of the leases referred to in sub-clauses (i), (ii) and (iii) (ii) HMG shall be entitled to obtain for use in Nepal any on such terms and conditions as may mutually agreed portion up to 50 per cent of the total hydro-electric upon. power generate by any Power House situated within a (v) The sovereignty rights and territorial jurisdiction of 10-mile redius from the barrage site and constructed HMG, including the application ad enforcement of the law of Nepal on and in respect of the leased land shall by or on behalf of the Union, as HMG shall from time continue unimpaired by such lease. to time determine and communicate to the Union: Provided that:- 6. ROYALTIES HMG shall communicate to the Union any increase or (i) HMG will receive royalty in respect to power decrease in the required power supply exceeding 6,800 generated and utilized in the Indian Union at rates to KW at least three months in advance. be settled by agreement hereafter: (iii) If any power to be supplied to Nepal pursuant to the Provided that no royalty will be paid on the power sold provisions of this cub-clause is generated in a power to Nepal. house located in Indian territory, the Union shall (ii) HMG shall be entitled to receive payment of royalties construct the necessary transmission line or lines to from the Union in respect of stone, gravel and ballast such points at the Nepal-Indian border as shall be obtained from Nepal territory and used in the mutually agree upon. construction and future maintenance of the barrage and other connected works at rates to be settled by (iv) The tariff rates for electricity to be supplied to Nepal agreement hereafter. pursuant to the provisions of this clause shall be fixed (iii) The Union shall be at liberty to use and remove clay, by mutual agreement. sand and soil without let or hindrance from lands leased by HMG to the Union. 298 / International Watercourses Law and Its Application in South Asia Appendix / 299

(iv) Use of timber from Nepal forest, required for the (a) to HMG for the loss of land revenue as at the time construction, shall be permitted on payment of of acquisition in respect of the area required, and compensation. Provided that no compensation will be (b) to whomsoever it my be due for the lands, houses payable to HMG for such quantities of timber as my and other immovable property acquired for the be agreed upon by HMG and the Union to be Project and leased to the Union. necessary for the use in the spurs and other river The assessment of such compensation and the training works required for the prevention of caving manner of payment shall be determined hereafter and erosion of the right bank in Nepal. y mutual agreement between HMG and the Union. Provided likewise that no compensation will be (iii) All lands required for the purposes of the Project shall payable to the Union for any timber obtained from the be jointly measured by the duly authorized officers of forestlands leased by HMG to the Union. HMG and the Union respectively.

7. CUSTOMS DUTIES 9. COMMUNICATIONS HMG shall charge no customs duty or duty of any kind, (i) HMG agrees that the Union may construct and during the construction and subsequent maintenance, on maintain roads, tramways, railways, ropeways, etc., any articles and materials required for the purpose of the required for the Project in Nepal and shall provide land Project and work connected therewith. for these pruposes on payment of compensation as

provided in clause 8. Provided that the construction of 8. COMPENSATION FOR LAND PROPERTY AND any roads, tramways, railways, ropeways, etc., outside FOR LAND REVENUE (i) For assessing the compensation to be awarded by the the Project area shall require the prior approval of Union to HMG in cash:- HMG. (a) Lands required for the execution of various works (ii) Any constructions, required in the interest of as mentioned in clause (ii) and clause9(i); and construction, maintenance and proper operation of the (b) Submerged lands will be divided into the Project, regarding the use of the roads, etc., referred to following clauses:- in sub-clause(i) by commercial or private vehicles may 1. Cultivated lands. be mutually agreed upon. In case of threatened breach 2. Forest lands. or erosion of the structures on account of the river, the 3. Village lands and houses and other officers of the Project may restrict public traffic under immovable property standing on them. intimation to HMG. 4. Waste land. (iii) HMG agrees to permit, on the same terms as for other All lands recorded in the register of lands in the territory of Nepal as actually cultivated shall be users, the use of all roads, waterways and other deemed to be cultivated lands for the purpose of avenues of transport and communication in Nepal for this clause. bona fide purposes of the construction and (ii) The Union shall pay compensation:- maintenance of the barrage and other connected works. 300 / International Watercourses Law and Its Application in South Asia Appendix / 301

(vi) The bridge over Hanuman Nagar barrage shall be 11. USE OF NEPALI LABOUR opened to public traffic. With prior approval of HMG, The Union shall give preference to Nepali labour, the Union shall have right to close the traffic over the personnel and contractors to the extent available and in its bridge temporarily if an in so far as required for opinion suitable for the construction of the Project but shall be at liberty to import labour of all cases to the extent technical or safety reasons. In such cases, the Union necessary. shall take measures required for the most expeditious

reopening of the bridge. 12. CIVIC AMENTIES IN THE PROJET AREA (v) HMG agrees to permit installation of telegraph, Subject to the prior approval of HMG, the Union may, in telephone and radio communications in Nepal for the the Project area, establish schools, hospitals, water-supply bona fide purposes of the construction and systems, electric supply systems, drainage and other civic maintenance of the Project. amenities for the duration of the construction of the Project. Provided that the Union shall agree to the withdrawal On completion of construction the Project, any such of such facilities, which HMG may in this respect, amenities shall, upon request by HMG, be transferred to provided in future. HMG, and that, in any case, any such amenities shall, upon Further provided that the Union shall agree to permit request by HMG, be transferred to HMG, and that, in any the use of internal telephone and telegraph in the case, all function of public administration shall, pursuant to the provisions of clause5(v) be exercised by HMG. Project area to authorized servants of HMG for

business in emergencies provided such use does not in 13. ARBITRATION any way interfere with the construction and operation (i) Any dispute or difference arising out of or in any way for the Project. touching or concerning the construction, effect or meaning of this Agreement, or of any matter contained 10. NAVIGATION RIGHTS herein or the respective rights and liabilities of the All navigation rights in the Kosi River in Nepal shall rest parties hereunder, if not settled by discussion shall be with HMG. Provision shall be made for suitable determined in accordance with the provisions of this arrangements at or around the site of the barrage for free clause. and unrestricted navigation in the Kosi River, if technically (ii) Any of the parties may by notice in writing inform the feasible. However, the use of any watercraft like boat, other party of its intention to refer to arbitration any launces and timber raft within two miles of the barrage and such dispute or difference mentioned in sub-clause (i); headworks shall not be allowed on grounds of safety, and within 90 days of the delivery of such notice, each except by special permits to be issued by the competent of the tw3o parties shall nominate an arbitrator for authority of HMG in consultation with the Executive jointly determining such dispute or differences and the Engineer, Barrage. While issuing the special permits within award of the arbitrator for jointly determining such two miles, HMG shall keep in view the safety of the dispute or difference and the award of the arbitrators headworks and the permit holders. shall be binding on the parties.

302 / International Watercourses Law and Its Application in South Asia Appendix / 303

(iii) In case the arbitrators are unable to agree, the parties (ii) This present Agreement shall supersede the hereto may consult each other and appoint an Umpire Agreement signed between the Government of Nepal whose award shall be final and binding on them. and Government of India on the 25th April, 19564 on the Kosi Project. 14. ESTABLISHMENT OF INDO-NEPAL KOSI PROJECT COMMISSION IN WITNESS WHEREOF the undersigned being duly (i) For the discussion of problems of common interest in authorized thereto by their respective Government have signed the present Amended Agreement. connection with the Project and for the purposes of co- th ordination and co-operation between the two Done at Kathmandu, in quadruplicate, this day, the 19 of Governments with regard to any matter covered in this December, 1966. Agreement, the two Governments shall at an early date establish a joint ‘Indo-Nepal Kosi Project For the Government of India For His Majesty’s Commission’. The rules for the composition, Government of Nepal jurisdiction, etc., of the said Commission shall be mutually agreed upon. SRIMAN NARAYAN Y. P. Panta (ii) Until the said Joint Commission shall be constituted Ambassador of India in Nepal Secretary, Ministry of the ‘Co-ordination Committee’ for the Kosi Project Economic Planning and Finance. shall continue function as follows:- (a) The committee shall consist of four • representatives from each country. (b) The Chairman of the committee shall be a Minister of HMG, and the Secretary shall be the Administrator of the Kosi project. (c) The committee shall consider among other such matters of common interest concerning the project as land acquisition by HMG for lease to the Union, rehabilitation of displaced population, maintenance of law and order. (iii) As soon as the said Joint Commission shall be consulted, the Coordination Committee for the Kosi Project shall be dissolved. 15. (i) This present Agreement shall come into force from the date of signatures of the authorized representatives of HMG and the Union respectively and thereafter, it shall remain valid for a period of 199 years. 304 / International Watercourses Law and Its Application in South Asia Appendix / 305 Appendix- 2 ground, aerial, hydraulic, hydrometric, hydrological and geological surveys; investigations for communication for Agreement between His Majesty’s the alignment of canals and for materials required for the Government of Nepal and the Government construction and maintenance of the Project. of India on the Gandak Irrigation and 2. AUTHORITY FOR THE EXECUTION OF WORKS Power Project AND THEIR MAINTENANCE (i) His Majesty’s Government authorize the Government Kathmandu of Indias to proceed with the execution of the Project December 4, 1959 and for this purpose His Makesty’s Government shall acquire all such lands as the Government of India may PEAMBLE:- WHEREAS His Majesty’s Government of require and will permit the access to, the movement Nepal and the Government of India consider that it is in the within the residence in the area indicated in the Plan of common interests of both Nepal and India to construct a officers and field staff with labour force, draught, barrage, canal head regulators and other appurtenant works animals, vehicles, plants, machinery, equipment and about 1,000 feet below the existing Tribeni Canal head instruments as may be necessary for the execution of regulator and of taking out canal systems for purposes of the Project and for its operation and maintenance after irrigation and development of power for Nepal and India its completion. (hereinafter referred to as ‘the Project’). (ii) In case of any apprehended danger or accident to any AND WHEREAS in view of the common benefits, His of the structures, the officers of te Government of Majesty’s Government have agreed to the construction of the India will execute all works which may be necessary said barrage, canal head regulators and other connected works for repairing the existing works or preventing such 2 as shown in the Plan annexed to this Agreement to the extent accidents and/or danger in the areas indicated in the that they lie within the territory of Nepal, by and at the cost of Plan. If any of such works have to be constructed on the Government of India. lands as may be necessary for the purpose. In all such

NOW THE PARTIES AGREE AS FOLLOWS:- cases the Government of India shall pay reasonable compensation for the lands so acquired as well as for 1. INVESTIGATION AND SURVEYS damage, if any, arising out of the execution of these His Majesty’s Government authorize the Project Officerss works. and other persons acting under the grneral or special orders (ii) Lands requisioned under paragraph (i) shall be held by of such officers to move in the area indicated in the said the Government of India for the duration of the Plan with men, material and equipment as may be required requisition and lands acquired under sub-clause (i) or for the surveys and investigations in connection with the transferred under sub-clause (ii) shall vest in the Project, before, during and after construction, as may be Government of India as proprietor and subject to found necessary from time to time. These surveys include payment of land revenue (Malpot) at the rates at which it is leviable on agricultural lands in the neighbourhood. 2 Not reproduced here. 306 / International Watercourses Law and Its Application in South Asia Appendix / 307

(iii) Lands requisitioned under paragraph (i) shall be held (iii) The Government of India agree to provide locking by the Government of India for the duration of the arrangements for facility of riverine traffic across the requisition an lands acquired under sub-clause (i) or Barrage free from payment of any tolls whatever, transferred under sub-clause (ii) shall vest in the provided that this traffic will be regulated by the Government of India as proprietor and subject to Project staff in accordance with the rules mutually payment of land revenue (Malpot) at the rates at which agreed upon between His Majesty’s Government and it is leviable on agricultural lands in the the Government of India. neighbourhood. (iv) The Government of India shall permit the use of (iv) When such land vesting in the Government of India or internal telegraph, telephone; and radio any part thereof ceases to be required by the communications as approximately indicated in the Government of India for the purposes of the Project, Plan for the bona fide purpose of the construction, the Government of India will reconvey the same to His maintenance and operation of the Project. Majesty’s Government free of charge. (v)the Government of India shall permit the use of internal telegraph, telephone and radio 4. QUARRYING communications as indicated in the Plan to the His Majesty’s Government shall permit the Government of authorized servants of His Majesty’s Government in India on payment of reasonable royalty to quarry materials emergencies, provided such use does not interfere with such as block stones, boulders, single and sand required for te construction, maintenance and operation of the the construction and maintenance of the Project from the Project. areas indicated in the said plan. 6. OWNERSHIP, OPERATION AND MAINTENANCE 5. COMMUNICATIONS OF WORKS (i) His Majesty’s Government shall allow the Subject to the provisions sub-clause (v) of clause 7, all Government of India to construct and maintain such works connected with the Project in the territory of Nepal portion of the main Western Canal which falls in the will remain the property of and be operated and maintained Nepal territory and to construct and maintain by the Government of India. communications for the construction and maintenance of the Project. The roads will be essentially 7. IRRIGATION FOR NEPAL departmental roads of the Project and their use by (i) The Government of Indial shall construct at their own commercial and non-commercial vehicles of Nepal cost the Western Nepal Canal including the will be regulated as mutually agreed upon between His distributary system thereof down to a minimum Majesty’s Government and the Government of India. discharge of 20 ft3/s for providing flow irrigation in (ii) The bridge over the Gandak Barrage will be open to the gross commanded area estimated to be about public traffic, but the Government of India shall have 40,000 acres. the right to close the traffic over the bridge for repair, (ii) The Government of India shall construct the Eastern etc. Nepal Canal from the tail end of the Don Branch Canal up to river Bagmati including the distributary 308 / International Watercourses Law and Its Application in South Asia Appendix / 309

system down to a minimum discharge of 20 ft3/s at of production plus the cost of transmission on such their own cost for providing flow irrigation in Nepal terms and conditions as may be mutually agreed upon. for the gross commanded area estimated to be 103,500 (iv) His Majesty’s Government will be responsible for the acres. construction at their own cost of the transmission and (iii) His Majesty’s Government shall be responsible for the distribution system for supply of power within Nepal construction of channels below 20 ft3/s capacity for from the Power House or from any point on the Grid irrigation in Nepal but the Government of India shall up to and including Raxaul. contribute such sum of money as they may consider (v) The ownership and management of the Power House reasonable to meet the cost of construction. shall be their own cost of the transmission and (iv) The Nepal Eastern Canal and the Nepal Western Canal distribution system for supply of power within Nepal shall be completed, as far as possible, within one year from the Power House or from any point on the Grid of the completion of the barrage. up to and including Raxaul. (v) The canal systems including the service roads situated (vi) The ownership of the transmission system constructed in Nepal territory except the main Western Canal shall by the Government of India at its cost shall remain be handed over to His Majesty’s Government for vested in the Government of India, but, on transfer of operation and maintenance at their cost. Power House, the Government of India shall continue the arrangements for transmission of power, if so 8. POWER DEVELOPMENT AND RESERVATION desired by His Majesty’s Government shall have right FOR NEAPL to purchase the transmission system from the Power (i) The Government of India agree to construct one Power House to Bhaisalotan situated in the Nepal territory on House with an installed capacity of 15,000 KW in the payment of the original cost minus depreciation. Nepal territory on the Main Western Canal. (vii) The Government of India shall be free to regulate the (ii) The government of India also agree to construct a flow into or close the Main Western Canal Head transmission line from the Power House in Nepal to Regulator temporarity, if such works are found to be the Bihar border near Bhaisalotan and from Sagauli to necessary in the interest of the efficient maintenance Raxaul in Bihar in order to facilitate supply of power and operation of the Canal or the Power House, on any point in the Bihar Grid up to and including provided that in such situations the Government of Raxaul. India agree to supply te minimum essential power (iii) The Government of India shall supply power to His from the Bihar Grid to the extent possible on such Majesty’s Government at the Power Huse and/or at terms and conditions as may be mutually agreed upon. any point in the Grid up to and including Raxaul to an aggregate masimum of 10,000 KW up to 60 per cent 9. PROTECTION OF NEPAL’S RIPAIRAN RIGHTS load factor at power factor not below 0.85. The His Majesty’s Government will continue to have the right charges for supply at the Power House shall be the to withdraw for irrigation or any other purpose from the cost of production ; and on any point on the Grid up to river or its tributaries in Nepal such supplies of water as Raxaul it shall be the actual cost of production, and on may be required by them from time to time and His any point on the Grid up to Raxaul it shall be the cost Majesty’s Government agree that they shall not exercise 310 / International Watercourses Law and Its Application in South Asia Appendix / 311

this right in such manner as is likely, in the opinion of the 14. This Agreement will come into force with effect from the parties hereto prejudicially to affect the water requirements date of signatures of the authorized representatives of His of the Project as set out in the schedule annexed hereto. Majesty’s Government and the Government of India respectively. 10. PRO RATE REDUCTION OF SUPPLIES DURING PERIOD OF SHORTAGE IN WITNESS WHEREOF the undersigned being duly Whenever the supply of water available for irrigation falls authorized thereof by their respective Governments have signed short of the requirements of the total area under the Project the present AGREEMENT in Nepali, Hindi and English in fro which irrigation has to be provided the shortage shall duplicate, all three texts being equally authentic, at Kathmandu be shared on pro rata bais between the Government of this 19th day of Magh Sambat 2016 corresponding to December India and His Majesty’s Government. 4, 1959. For purposes of interpretation the English text shall be used. 11. SOVERIGNTY AND JURISDICTION Nothing in this Agreement shall be deemed to derogate For the Government of India On behalf of from the sovereignty and territorial jurisdiction of His For and on behalf of His Majesty’s Government Majesty’s Government in respect of lands acquired by His President of India of Nepal Majesty’s Government and made available to the Government of India for investigation, execution and maintenance of the Project. BHAGWAN SAHAY SUBARNA SHAMSHERE Ambassador of India Deputy Prime Minister 12. ARBITRATION (i) Any dispute or difference arising out of or in any way • touching or concerning the construction, effect or meaning of this Agreement, or of any mater contained herein or the respective rights and liabilities of the parties hereunder, if not settled by discussion, shall be determined in accordance with provision of this clause. (ii) Any of the parties may be notice in writing inform the other party of its intention to refer to arbitration any such disputes or difference mentioned in sub-clause (1) and within 90 days of the delivery of such notice, each of the two parties shall nominate an arbitrator for jointly determining such dispute or difference and the award of the arbitrators shall be binding on the parties. (iii) In case the arbitrators are unable to agree, the parties hereto may consult each other appoint an Umpire whose award shall be final and bonding on them. 312 / International Watercourses Law and Its Application in South Asia Appendix / 313

Appendix- 3 Noting that both the Parties jointly preparing a Detailed Project Report of the Pancheshwar Multi purpose Project to b Treaty between His Majesty’ Government of implemented in the Mahakali River; Nepal and the Government of India Now, therefore, the Parties hereto hereby have agreed as follows: concerning the Integrated Mahakali River, including Sarada Barrage, Tanakpur Article 1

Barrage and Pancheshwar Project 1. Nepal shall have the right to a supply of 28.35m3/s (1000ft3/s of water from the Sarada Barrage in the wet season (i. e. from 16th October to 14th May). His Majesty’s government of NEPAL, and the Government of 2. India shall maintain a flow of not less than 10 m3/s (350 INDIA(hereinafter referred to as the ‘Parties’) ft3/s) downstream of the Sarada Barrage in the Mahakali River to maintain and preserve the river eco-system. Referring the determination to promote and strengthen their 3. In case the Sarada Barage become non-functional due to relations of friendship and close neighbourness for the co- any cause. operation in the development of water resources; Recognizing that the Mahakali River is a boundary river on (a) Nepal shall have the right to a supply of water as major stretches between the two countries; mentioned in Paragraph 1 of this Article, by using the head regulator (s) mentioned in Paragraph 2of Realizing the desirability to enter into a treaty on the basis of Article 2 herein. Such a supply of water shall be in equal partnership to define their obligations and corresponding addition to the water to be supplied to Nepal rights and duties thereto in regard to the waters of the Mahakali pursuant to Paragraph 2 of Article 2. River and its utilization; (b) India shall maintain the rive flow pursuant to Paragraph 2 of the Article from the tailrace of the Noting the Exchange of Letters of 1920 through which both the Tanakpur Power Station downstream of the Sarada parties had entered into an arrangement for the construction of Barrage. Sarada Barrage in the Mahakali River, whereby Nepal is to Article 2 receive some waters from the said Barrage; In continuation of the decisions taken in the Joint Commission Recalling the decision taken in the Joint Commission dated 4-5 dates 4-5 December, 1991 and a Joint Communiqué issues December, 1991 and the Joint Communiqué issued during the during the visit of the Prime Ministers of India of India to visit of the Prime Minister of India to Nepal on 21st October, Nepal on 21st October, 1992, both the Parties agree as follows. 1992 regarding the Tanakpur Barrage which India has 1. For the construction of the eastern afflux bund of the constructed in a course of the Mahakali River with a part of the Tanakpure barrage, at Jimuwa and tying it up to the high eastern afflux bund at Jimuwa and the adjoining poundage area ground in the Nepalese territory at EL 250 M, Nepal gives of the said barrage lying in the Nepalese territory; its consent to use a piece of land of about 577 meters in length (an area of about 2.9 hectares) of the Nepalese 314 / International Watercourses Law and Its Application in South Asia Appendix / 315

territory at the Jimuwa Village in Mahendranagar (b) Nepal shall have additional energy equal to half of the Municipal area and a certain portion of the No-Man’s Land incremental energy generated from the Tanakpur on either side of the border. The Nepalese land consented to Power Station, on a continuous basis from the date of be so used and the land lying on the west of the said augmentation of the flow of the Mahakali River and land )about 9 hectares) up to the Nepal India border which shall bear half of the additional operation cost and, if forms a part for the poundage area, including the natural required, half of the additional capital cost at the resources endowment lying within the area, remains under Tanakpur Power Station for the generation of such the continued sovereignty and control of Nepal and. incremental energy.

2. In lieu of the eastern afflux bund of the Tanakpur Barrrage, Article 3 at Jimuwa thus constructed, Nepal shall have the right to- (a) a supply of 28.35 m3/s (1000ft3/s) of water in the wet Pancheshwar Multipurpose Project (hereinafter referred to as season(i. e. from 15th May to 15th October) and 8.50 the “Project”) is to be constructed on a stretch of the Mahakali m3/s (300ft3/s) in the dry season (i. e. from 16th River where it forms the boundary between the two countries th October to 14 May) from the date for the entry into and hence both the parties agree that they have equal force of this Treaty. For this purposes of Article 1 entitlement in the utilization of the waters of the Mahakali herein, India shall construct the head regulator (s) near River without prejudice to their respective existing the left undersluice of the Tanakpur Barrage and also consumptive uses of the waters of the Mahakali River. the waterways of the required capacity up to the Nepal- Therefore, both Parties agree to implement the Project in the India border. Such head regulator(s) and waterways shall be operated jointly. Mahakali River is accordance with the Detailed Project Report (b) a supply of 70 millions kilowatt-hour (units) of energy (DPR) being jointly prepared by them. The Project shall be on a continuous basis annually, free of cost, from the designed and implemented on the basis of the following date of the entry into force of this Treaty. For this principles: purpose, India shall construct a 132 K v transmission 1. The Project shall, as would be agreed between the line up to the Nepal-India border from the Tanakpur Parties, be designed to produce the maximum total net Power Station (which has, at present, an installed benefit. All benefits accruing to both the Parties with capacity of 120,000 kilowatt generating 448.4 millions the development of the Project in the forms of power, kilowatt-hour of energy annually on 90 percent irrigation, flood control etc., shall be assessed. dependable year flow). 2. The Project shall be implemented or caused to be 3. Following arrangement shall be made at the Tanakpur implemented as an integrated project including power Barrage, at the time of development of any storage project (s) including Pancheshwar Multipurpose Project upstream stations shall be operated in an integrated manner and of the Tanakpur Barrage. the total energy generated shall be shared equally (a) Additional head regulator and necessary waterways, as between the Parties. required, up to the Nepal-India border shall be 3. The cost of the project shall be borne by the Parties in constructed to supply additional water to Nepal. Such proportion to the benefits accruing to them. Both the head regulator and waterways shall be operated jointly. 316 / International Watercourses Law and Its Application in South Asia Appendix / 317

Parties shall jointly endeavour to mobilize the finance Article 8

required for the implementation of the Project. This Treaty shall not preclude planning, survey, 4. A portion of Nepal’s share of energy shall be sold to development and operation of any work on the tributaries India. The quantum of such energy and its price shall be of the Mahakali River, to be carried out independently by mutually agreed upon between the Parties. each Party in its own territory without adversely affecting Article 4 the provision of Article 7 of this Treaty.

India shall supply 10 m3/s (350 ft3/s) of water for the Article 9

irrigation of Dodhara –Chandani area of Nepalese territory. 1. There shall be a Mahakali River Commission (hereinafter The technical and other details will be mutually worked out. referred to as the ‘Commission’). The Commission shall be Article 5 guided by the principles of equality, mutual benefit and no harm to either Party. 1. Water requirements of Nepal shall be given prime 2. The commission shall be composed of equal number of consideration in the utilization of the waters of the representatives from both the Parties. Mahakali River. 3. The function of the Commission shall, inter alia, include the 2. Both the Parties shall be entitled to draw their share of following: waters of the Mahakali River from the Tanakpur Barrage (a) To seek information on and, if necessary, inspect all and/or other mutually agreed points as provided for in this structures included in the Treaty and make Treaty and any subsequent agreement between the Parties. recommendations to both the Parties to take steps Article 6 which shall be necessary to implement the provisions

Any Project, other than those mentioned herein, to be of this Treaty, developed in the Mahakali River, where it is a boundary (b) To make recommendations to both the Parties for the river, shall be designed and implemented by an agreement conservation and utilization of the Mahakali River as between the Parties on the principles established by the envisaged and provided for in this Treaty, Treaty. (c) To provide expert evaluation of projects and recommendations thereto, Article 7 (d) To co-ordinate and monitor plans of actions arising out

In order to maintain the flow and level of the waters of the of the implementation of this treaty, and Mahakali River, each Party undertakes not to use or (e) To examine any differences arising between the obstruct or divert the waters of the Mahakali River Parties concerning the interpretation and application of adversely affecting its natural flow and level except by an this Treaty. agreement between the Parties. Provided, however, this 4. The expense of the Commission shall be borne equally by shall not preclude the use of the waters of the Mahakali both the Parties. River by the local communities living along both sides of 5. As soon as the Commission has been constituted pursuant the Mahakali River, not exceeding five (5) percent of the to Paragraph 1and 2 of this Article, it shall draft its rules of average annual flow at Pancheshwar. procedure, which shall be submitted to other the Parties for their concurrence. 318 / International Watercourses Law and Its Application in South Asia Appendix / 319

6. Both the Parties shall reserve their rights to deal directly of notes between the Parties. Both the Parties may also with each other on matters, which may be in the agree by such exchange of notes on alternative procedures competence of the Commission. for settling differences arising under this Treaty.

Article 10 Article 12

Both the Parties may from project specific joint entity/ies for 1. Following the conclusion of this Treaty, the earlier the development, execution and operation of new projects understanding reached between the Parties concerning the including Pancheshwar Multipurpose Project in the Mahakali utilization of the waters of the Mahakali River from the Rive for their mutual benefit. Sarada Barrrage and the Tanakpur Barrage, which has been incorporated herein, shall be deemed to have been replaced Article 11 by this Treaty. 1. If the Commission fails under Article 9 of this Treaty to 2. This Treaty shall be subject to ratification and shall enter recommend its opinion after examining the differences of into force on the date of exchange of instruments of the Parties within thee (3) months of such reference to the ratification. It shall remains valid for a period of seventy- Commission then a dispute shall be deemed to have arisen five (75) years from the date of its entry into force. which shall then be submitted to arbitration for decision. In 3. This Treaty shall be reviewed by both the Parties at ten (10) doing so either party shall give three (30 months prior years interval or earlier as required by wither Party and notice other the other Party. make amendments thereof, if necessary. 2. Arbitration shall be conducted by a tribunal composed of 4. Agreement, as required, shall be entered into by the Parties three arbitrators. One arbitrator shall be nominated by to give effect to the provisions of this Treaty. Nepal, one by India, with neither country nominate its own national and the third arbitrator shall be appointed jointly, IN WITNESS WEHREFO the undersigned being duly who, as a member of the tribunal shall preside over such authorized thereto by their respective governments have thereto tribunal. In the event that the Parties are unable to agree their seals in two originals each in Hindi, Nepali and English upon the third arbitrator within ninety (90) days after languages, all the texts being equally authentic. In case of doubt, receipt of a proposal, with Party may request the Secretary- the English text shall prevail. General of the Permanent Court of Arbitration at the Hague to appoint such arbitrator who shall not be a national of Done at New Delhi, India, on the twelfth day of February of the either country. year one thousand nine hundred ninety six. 3. The procedures of the arbitration shall be determined by the arbitration tribunal and the decision of a majority of the (SHER BAHADUR DEUBA) (P. V. NARSIMGH RAO) arbitrators shall be decision of the tribunal. The proceedings PRIME MINISTER OF INDIA of the tribunal shall be conducted in English and the PRIME MINISTERS decision of such a tribunal shall be in writing. HIS MAJESTY’S GOVERNMENT OF NEPAL 4. Provision for the venue of arbitration, the administrative support of the arbitration tribunal and the remuneration and • expenses of its arbitrators shall be as agreed in an exchange 320 / International Watercourses Law and Its Application in South Asia Appendix / 321 Appendix- 4 Recalling also the existing bilateral and multilateral agreements regarding the non-navigational uses of international United Nations Convention on the Law of watercourses, the Non-navigational Uses of International Watercourses, 1997 Mindful of the valuable contribution of international organizations, both governmental and non-governmental, to the codification and progressive development of international law The Parties to the present Convention, Conscious of the in this field, importance of international watercourses and the non- Appreciative of the work carried out by the International Law navigational uses thereof in many regions of the world, Commission on the law of the non-navigational uses of international watercourses, Having in mind Article 13, paragraph 1 (a), of the Charter of the United Nations, which provides that the General Assembly Bearing in mind United Nations General Assembly resolution shall initiate studies and make recommendations for the 49/52 of 9 December 1994, purpose of encouraging the progressive development of Have agreed as follows: international law and its codification, Considering that successful codification and progressive development of rules of PART- I international law regarding non-navigational uses of INTRODUCTION international watercourses would assist in promoting and implementing the purposes and principles set forth in Articles 1 Article 1 and 2 of the Charter of the United Nations, Scope of the Present Convention Taking into account the problems affecting many international watercourses resulting from, among other things, increasing 1. The present Convention applies to uses of international demands and pollution, watercourses and of their waters for purposes other than Expressing the conviction that a framework convention will navigation and to measures of protection, preservation and ensure the utilization, development, conservation, management management related to the uses of those watercourses and and protection of international watercourses and the promotion their waters. of the optimal and sustainable utilization thereof for present 2. The uses of international watercourses for navigation is not and future generations within the scope of the present Convention except insofar Affirming the importance of international cooperation and good as other uses affect navigation or are affected by navigation. neighbourliness in this field, Aware of the special situation and needs of developing Article 2 countries, Use of Terms

Recalling the principles and recommendations adopted by the For the purposes of the present Convention: United Nations Conference on Environment and Development (a) "Watercourse" means a system of surface waters and of 1992 in the Rio Declaration and Agenda 21, groundwaters constituting by virtue of their physical 322 / International Watercourses Law and Its Application in South Asia Appendix / 323

relationship a unitary whole and normally flowing into a which it applies. Such an agreement may be entered into common terminus; with respect to an entire international watercourse or any (b) "International watercourse" means a watercourse, parts of part thereof or a particular project programme or use which are situated in different States; except insofar as the agreement adversely affects, to a (c) "Watercourse State" means a State Party to the present significant extent, the use by one or more other Convention in whose territory part of an international watercourse States of the waters of the watercourse, watercourse is situated, or a Party that is a regional without their express consent. economic integration organization, in the territory of one or 5. Where a watercourse State considers that adjustment and more of whose Member States part of an international application of the provisions of the present Convention is watercourse is situated; required because of the characteristics and uses of a (d) "Regional economic integration organization" means an particular international watercourse, watercourse States organization constituted by sovereign States of a given shall consult with a view to negotiating in good faith for region, to which its member States have transferred the purpose of concluding a watercourse agreement or competence in respect of matters governed by this agreements. Convention and which has been duly authorized in 6. Where some but not all watercourse States to a particular accordance with its internal procedures, to sign, ratify, international watercourse are parties to an agreement, accept, approve or accede to it. nothing in such agreement shall affect the rights or obligations under the present Convention of watercourse Article 3 States that are not parties to such an agreement. Watercourse Agreements Article 4 1. In the absence of an agreement to the contrary, nothing in Parties to Watercourse Agreements the present Convention shall affect the rights or obligations of a watercourse State arising from agreements in force for 1. Every watercourse State is entitled to participate in the it on the date on which it became a party to the present negotiation of and to become a party to any watercourse Convention. agreement that applies to the entire international 2. Notwithstanding the provisions of paragraph 1, parties to watercourse, as well as to participate in any relevant agreements referred to in paragraph 1 may, where consultations. necessary, consider harmonizing such agreements with the 2. A watercourse State whose use of an international basic principles of the present Convention. watercourse may be affected to a significant extent by the 3. Watercourse States may enter into one or more agreements, implementation of a proposed watercourse agreement that hereinafter referred to as "watercourse agreements", which applies only to a part of the watercourse or to a particular apply and adjust the provisions of the present Convention project, programme or use is entitled to participate in to the characteristics and uses of a particular international consultations on such an agreement and, where watercourse or part thereof. appropriate, in the negotiation thereof in good faith with a 4. Where a watercourse agreement is concluded between two view to becoming a party thereto, to the extent that its use or more watercourse States, it shall define the waters to is thereby affected. 324 / International Watercourses Law and Its Application in South Asia Appendix / 325

PART- II (f) Conservation, protection, development and economy GENERAL PRINCIPLES of use of the water resources of the watercourse and the costs of measures taken to that effect; Article 5 (g) The availability of alternatives, of comparable value, Equitable and Reasonable Utilization and Participation to a particular planned or existing use. 2. In the application of article 5 or paragraph 1 of this article, 1. Watercourse States shall in their respective territories watercourse States concerned shall, when the need arises, utilize an international watercourse in an equitable and enter into consultations in a spirit of cooperation. reasonable manner. In particular, an international 3. The weight to be given to each factor is to be determined watercourse shall be used and developed by watercourse by its importance in comparison with that of other relevant States with a view to attaining optimal and sustainable factors. In determining what is a reasonable and equitable utilization thereof and benefits therefrom, taking into use, all relevant factors are to be considered together and a account the interests of the watercourse States concerned, conclusion reached on the basis of the whole. consistent with adequate protection of the watercourse. 2. Watercourse States shall participate in the use, Article 7 development and protection of an international watercourse Obligation Not to Cause Significant Harm in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the 1. Watercourse States shall, in utilizing an international duty to cooperate in the protection and development watercourse in their territories, take all appropriate thereof, as provided in the present Convention. measures to prevent the causing of significant harm to other watercourse States. Article 6 2. Where significant harm nevertheless is caused to another Factors Relevant to Equitable and Reasonable Utilization watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all 1. Utilization of an international watercourse in an equitable appropriate measures, having due regard for the provisions and reasonable manner within the meaning of article 5 of articles 5 and 6, in consultation with the affected State, requires taking into account all relevant factors and to eliminate or mitigate such harm and, where appropriate, circumstances, including: to discuss the question of compensation. (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; Article 8 (b) The social and economic needs of the watercourse General Obligation to Cooperate States concerned; (c) The population dependent on the watercourse in each 1. Watercourse States shall cooperate on the basis of watercourse State; sovereign equality, territorial integrity, mutual benefit and (d) The effects of the use or uses of the watercourses in good faith in order to attain optimal utilization and one watercourse State on other watercourse States; adequate protection of an international watercourse. (e) Existing and potential uses of the watercourse; 326 / International Watercourses Law and Its Application in South Asia Appendix / 327

2. In determining the manner of such cooperation, to 7, with special regard being given to the requirements of watercourse States may consider the establishment of joint vital human needs. mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures and PART- III procedures in the light of experience gained through PLANNED MEASURES cooperation in existing joint mechanisms and commissions in various regions. Article 11 Article 9 Information Concerning Planned Measures Regular Exchange of Data and Information Watercourse States shall exchange information and consult 1. Pursuant to article 8, watercourse States shall on a regular each other and, if necessary, negotiate on the possible effects of basis exchange readily available data and information on planned measures on the condition of an international the condition of the watercourse, in particular that of a watercourse. hydrological, meteorological, hydrogeological and Article 12 ecological nature and related to the water quality as well as Notification Concerning Planned Measures related forecasts. with Possible Adverse Effects 2. If a watercourse State is requested by another watercourse State to provide data or information that is not readily Before a watercourse State implements or permits the available, it shall employ its best efforts to comply with the implementation of planned measures which may have a request but may condition its compliance upon payment by significant adverse effect upon other watercourse States, it shall the requesting State of the reasonable costs of collecting provide those States with timely notification thereof. Such and, where appropriate, processing such data or notification shall be accompanied by available technical data information. and information, including the results of any environmental 3. Watercourse States shall employ their best efforts to collect impact assessment, in order to enable the notified States to and, where appropriate, to process data and information in evaluate the possible effects of the planned measures. a manner which facilitates its utilization by the other watercourse States to which it is communicated. Article 13 Period for Reply to Notification Article 10 Relationship Between Different Kinds of Uses Unless otherwise agreed: (a) A watercourse State providing a notification under article 1. In the absence of agreement or custom to the contrary, no 12 shall allow the notified States a period of six months use of an international watercourse enjoys inherent priority within which to study and evaluate the possible effects of over other uses. the planned measures and to communicate the findings to it; 2. In the event of a conflict between uses of an international (b) This period shall, at the request of a notified State for watercourse, it shall be resolved with reference to articles 5 which the evaluation of the planned measures poses special difficulty, be extended for a period of six months. 328 / International Watercourses Law and Its Application in South Asia Appendix / 329

Article 14 the time for a reply which would not have been undertaken Obligations of the Notifying State if the notified State had objected within that period. During the Period for Reply Article 17 During the period referred to in article 13, the notifying State: Consultations and Negotiations Concerning Planned Measures (a) Shall cooperate with the notified States by providing them, on request, with any additional data and information that is 1. If a communication is made under article 15 that available and necessary for an accurate evaluation; and implementation of the planned measures would be (b) Shall not implement or permit the implementation of the inconsistent with the provisions of articles 5 or 7, the planned measures without the consent of the notified notifying State and the State making the communication States. shall enter into consultations and, if necessary, negotiations with a view to arriving at an equitable resolution of the Article 15 situation. Reply to Notification 2. The consultations and negotiations shall be conducted on the basis that each State must in good faith pay reasonable The notified States shall communicate their findings to the regard to the rights and legitimate interests of the other notifying State as early as possible within the period applicable State. pursuant to article 13. If a notified State finds that 3. During the course of the consultations and negotiations, the implementation of the planned measures would be inconsistent notifying State shall, if so requested by the notified State at with the provisions of articles 5 or 7, it shall attach to its the time it makes the communication, refrain from finding a documented explanation setting forth the reasons for implementing or permitting the implementation of the the finding. planned measures for a period of six months unless otherwise agreed. Article 16 Absence of Reply to Notification Article 18 Procedures in the Absence of Notification

1. If, within the period applicable pursuant to article 13, the 1. If a watercourse State has reasonable grounds to believe notifying State receives no communication under article that another watercourse State is planning measures that 15, it may, subject to its obligations under articles 5 and 7, may have a significant adverse effect upon it, the former proceed with the implementation of the planned measures, State may request the latter to apply the provisions of in accordance with the notification and any other data and article 12. The request shall be accompanied by a information provided to the notified States. documented explanation setting forth its grounds. 2. Any claim to compensation by a notified State which has 2. In the event that the State planning the measures failed to reply within the period applicable pursuant to nevertheless finds that it is not under an obligation to article 13 may be offset by the costs incurred by the provide a notification under article 12, it shall so inform notifying State for action undertaken after the expiration of the other State, providing a documented explanation setting 330 / International Watercourses Law and Its Application in South Asia Appendix / 331

forth the reasons for such finding. If this finding does not Article 21 satisfy the other State, the two States shall, at the request of Prevention, Reduction and Control of Pollution that other State, promptly enter into consultations and negotiations in the manner indicated in paragraphs 1 and 2 1. For the purpose of this article, "pollution of an of article 17. international watercourse" means any detrimental 3. During the course of the consultations and negotiations, the alteration in the composition or quality of the waters of an State planning the measures shall, if so requested by the international watercourse which results directly or other State at the time it requests the initiation of indirectly from human conduct. consultations and negotiations, refrain from implementing 2. Watercourse States shall, individually and, where or permitting the implementation of those measures for a appropriate, jointly, prevent, reduce and control the period of six months unless otherwise agreed. pollution of an international watercourse that may cause significant harm to other watercourse States or to their Article 19 environment, including harm to human health or safety, to Urgent Implementation of Planned Measures the use of the waters for any beneficial purpose or to the 1. In the event that the implementation of planned measures is living resources of the watercourse. Watercourse States of the utmost urgency in order to protect public health, shall take steps to harmonize their policies in this public safety or other equally important interests, the State connection. planning the measures may, subject to articles 5 and 7, 3. Watercourse States shall, at the request of any of them, immediately proceed to implementation, notwithstanding consult with a view to arriving at mutually agreeable the provisions of article 14 and paragraph 3 of article 17. measures and methods to prevent, reduce and control 2. In such case, a formal declaration of the urgency of the pollution of an international watercourse, such as: measures shall be communicated without delay to the other (a) Setting joint water quality objectives and criteria; watercourse States referred to in article 12 together with (b) Establishing techniques and practices to address the relevant data and information. pollution from point and non-point sources; 3. The State planning the measures shall, at the request of any (c) Establishing lists of substances the introduction of of the States referred to in paragraph 2, promptly enter into which into the waters of an international watercourse consultations and negotiations with it in the manner is to be prohibited, limited, investigated or monitored. indicated in paragraphs 1 and 2 of article 17. Article 22 PART- IV Introduction of Alien or New Species PROTECTION, PRESERVATION AND MANAGEMENT

Article 20 Watercourse States shall take all measures necessary to prevent Protection and Preservation of Ecosystems the introduction of species, alien or new, into an international watercourse which may have effects detrimental to the Watercourse States shall, individually and, where appropriate, ecosystem of the watercourse resulting in significant harm to jointly, protect and preserve the ecosystems of international other watercourse States. watercourses. 332 / International Watercourses Law and Its Application in South Asia Appendix / 333

Article 23 alter, vary or otherwise control the flow of the waters of an Protection and Preservation of the Marine Environment international watercourse.

Watercourse States shall, individually and, where appropriate, Article 26 in cooperation with other States, take all measures with respect Installations to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking 1. Watercourse States shall, within their respective territories, into account generally accepted international rules and employ their best efforts to maintain and protect standards. installations, facilities and other works related to an international watercourse. Article 24 2. Watercourse States shall, at the request of any of them Management which has reasonable grounds to believe that it may suffer

1. Watercourse States shall, at the request of any of them, significant adverse effects, enter into consultations with enter into consultations concerning the management of an regard to: international watercourse, which may include the (a) The safe operation and maintenance of installations, establishment of a joint management mechanism. facilities or other works related to an international 2. For the purposes of this article, "management" refers, in watercourse; and particular, to: (b) The protection of installations, facilities or other works (a) Planning the sustainable development of an from willful or negligent acts or the forces of nature. international watercourse and providing for the implementation of any plans adopted; and PART- V (b) Otherwise promoting the rational and optimal HARMFUL CONDITIONS AND utilization, protection and control of the watercourse. EMERGENCY SITUATIONS

Article 25 Article 27 Regulation Prevention and mitigation of harmful conditions

1. Watercourse States shall cooperate, where appropriate, to Watercourse States shall, individually and, where appropriate, respond to needs or opportunities for regulation of the flow jointly, take all appropriate measures to prevent or mitigate of the waters of an international watercourse. conditions related to an international watercourse that may be 2. Unless otherwise agreed, watercourse States shall harmful to other watercourse States, whether resulting from participate on an equitable basis in the construction and maintenance or defrayal of the costs of such regulation natural causes or human conduct, such as flood or ice works as they may have agreed to undertake. conditions, water-borne diseases, siltation, erosion, salt-water 3. For the purposes of this article, "regulation" means the use intrusion, drought or desertification. of hydraulic works or any other continuing measure to 334 / International Watercourses Law and Its Application in South Asia Appendix / 335

Article 28 Article 30 Emergency situations Indirect Procedures

1. For the purposes of this article, "emergency" means a In cases where there are serious obstacles to direct contacts situation that causes, or poses an imminent threat of between watercourse States, the States concerned shall fulfill causing, serious harm to watercourse States or other States their obligations of cooperation provided for in the present and that results suddenly from natural causes, such as Convention, including exchange of data and information, floods, the breaking up of ice, landslides or earthquakes, or notification, communication, consultations and negotiations, from human conduct, such as industrial accidents. through any indirect procedure accepted by them. 2. A watercourse State shall, without delay and by the most

expeditious means available, notify other potentially Article 31 affected States and competent international organizations Data and Information Vital to National Defence or Security of any emergency originating within its territory.

3. A watercourse State within whose territory an emergency originates shall, in cooperation with potentially affected Nothing in the present Convention obliges a watercourse State States and, where appropriate, competent international to provide data or information vital to its national defence or organizations, immediately take all practicable measures security. Nevertheless, that State shall cooperate in good faith necessitated by the circumstances to prevent, mitigate and with the other watercourse States with a view to providing as eliminate harmful effects of the emergency. much information as possible under the circumstances. 4. When necessary, watercourse States shall jointly develop contingency plans for responding to emergencies, in Article 32 cooperation, where appropriate, with other potentially Non-discrimination affected States and competent international organizations. Unless the watercourse States concerned have agreed otherwise PART- VI for the protection of the interests of persons, natural or MISCELLANEOUS PROVISIONS juridical, who have suffered or are under a serious threat of suffering significant transboundary harm as a result of activities Article 29 related to an international watercourse, a watercourse State International watercourses and installations shall not discriminate on the basis of nationality or residence or in time of armed conflict place where the injury occurred, in granting to such persons, in International watercourses and related installations, facilities accordance with its legal system, access to judicial or other and other works shall enjoy the protection accorded by the procedures, or a right to claim compensation or other relief in principles and rules of international law applicable in respect of significant harm caused by such activities carried on international and non-international armed conflict and shall not in its territory. be used in violation of those principles and rules.

336 / International Watercourses Law and Its Application in South Asia Appendix / 337

Article 33 request pursuant to paragraph 3, any other Party concerned Settlement of disputes may request the Secretary-General of the United Nations to appoint a person who shall not have the nationality of any 1. In the event of a dispute between two or more Parties of the parties to the dispute or of any riparian State of the concerning the interpretation or application of the present watercourse concerned. The person so appointed shall Convention, the Parties concerned shall, in the absence of constitute a single-member Commission. an applicable agreement between them, seek a settlement 6. The Commission shall determine its own procedure. of the dispute by peaceful means in accordance with the 7. The Parties concerned have the obligation to provide the following provisions. Commission with such information as it may require and, 2. If the Parties concerned cannot reach agreement by on request, to permit the Commission to have access to negotiation requested by one of them, they may jointly their respective territory and to inspect any facilities, plant, seek the good offices of, or request mediation or equipment, construction or natural feature relevant for the conciliation by, a third party, or make use, as appropriate, purpose of its inquiry. of any joint watercourse institutions that may have been 8. The Commission shall adopt its report by a majority vote, established by them or agree to submit the dispute to unless it is a single-member Commission, and shall submit arbitration or to the International Court of Justice. that report to the Parties concerned setting forth its findings 3. Subject to the operation of paragraph 10, if after six and the reasons therefore and such recommendations as it months from the time of the request for negotiations deems appropriate for an equitable solution of the dispute, referred to in paragraph 2, the Parties concerned have not which the Parties concerned shall consider in good faith. been able to settle their dispute through negotiation or any 9. The expenses of the Commission shall be borne equally by other means referred to in paragraph 2, the dispute shall be the Parties concerned submitted, at the request of any of the parties to the 10. When ratifying, accepting, approving or acceding to the dispute, to impartial fact-finding in accordance with present Convention, or at any time thereafter, a Party paragraphs 4 to 9, unless the Parties otherwise agree. which is not a regional economic integration organization 4. Fact-finding Commission shall be established, composed may declare in a written instrument submitted to the of one member nominated by each Party concerned and in Depositary that, in respect of any dispute not resolved in addition a member not having the nationality of any of the accordance with paragraph 2, it recognizes as compulsory Parties concerned chosen by the nominated members who ipso facto and without special agreement in relation to any shall serve as Chairman. Party accepting the same obligation: 5. If the members nominated by the Parties are unable to (a) Submission of the dispute to the International Court of agree on a Chairman within three months of the request for Justice; and/or the establishment of the Commission, any Party concerned (b) Arbitration by an arbitral tribunal established and may request the Secretary-General of the United Nations to operating, 'unless the parties to the dispute otherwise appoint the Chairman who shall not have the nationality of agreed, in accordance with the procedure laid down in any of the parties to the dispute or of any riparian State of the annex to the present Convention. the watercourse concerned. If one of the Parties fails to nominate a member within three months of the initial 338 / International Watercourses Law and Its Application in South Asia Appendix / 339

A Party which is a regional economic integration organization shall declare the extent of their competence with respect to may make a declaration with like effect in relation to arbitration the matters governed by the Convention. These in accordance with subparagraph (b). organizations shall also inform the Secretary-General of the United Nations of any substantial modification in the PART- VII extent of their competence. FINAL CLAUSES Article 36 Article 34 Entry into Force Signature 1. The present Convention shall enter into force on the The present Convention shall be open for signature by all States ninetieth day following the date of deposit of the thirty- and by regional economic integration organizations from 21 fifth instrument of ratification, acceptance, approval or May 1997 until 20 May 2000 at United Nations Headquarters accession with the Secretary-General of the United in New York. Nations. 2. For each State or regional economic integration Article 35 organization that ratifies, accepts or approves the Ratification, Acceptance, Approval or Accession Convention or accedes thereto after the deposit of the thirty-fifth instrument of ratification, acceptance, approval 1. The present Convention is subject to ratification, or accession, the Convention shall enter into force on the acceptance, approval or accession by States and by ninetieth day after the deposit by such State or regional regional economic integration organizations. The economic integration organization of its instrument of instruments of ratification, acceptance, approval or ratification, acceptance, approval or accession. accession shall be deposited with the Secretary-General of 3. For the purposes of paragraphs 1 and 2, any instrument the United Nations. deposited by a regional economic integration organization 2. Any regional economic integration organization which shall not be counted as additional those deposited by States. becomes a Party to this Convention without any of its member States being a Party shall be bound by all the Article 37 obligations under the Convention. In the case of such Authentic Texts organizations, one or more of whose member States is a Party to this Convention, the organization and its member The original of the present Convention, of which the Arabic, States shall decide on their respective responsibilities for Chinese, English, French, Russian and Spanish texts are the performance of their obligations under the Convention. equally authentic, shall be deposited with the Secretary-General In such cases, the organization and the member States shall of the United Nations. not be entitled to exercise rights under the Convention IN WITNESS WHEREOF the undersigned plenipotentiaries, concurrently. being duly authorized thereto, have signed this Convention. 3. In their instruments of ratification, acceptance, approval or DONE at New York, this ______day of one thousand accession, the regional economic integration organizations nine hundred and ninety-seven. 340 / International Watercourses Law and Its Application in South Asia Appendix / 341

ANNEX second arbitrator, the President of the International Court ARBITRATION of Justice shall, at the request of a party, designate the Chairman within a further two-month period. Article 1 2. If one of the parties to the dispute does not appoint an Unless the parties to the dispute otherwise agree, the arbitration arbitrator within two months of receipt of the request, the pursuant to article 33 of the Convention shall take place in other party may inform the President of the International accordance with articles 2 to 14 of the present annex. Court of Justice, who shall make the designation within a further two-month period. Article 2 The claimant party shall notify the respondent party that it is Article 5 referring a dispute to arbitration pursuant to article 33 of the The arbitral tribunal shall render its decisions in accordance Convention. The notification shall state the subject matter of with the provisions of this Convention and international law. arbitration and include, in particular, the articles of the Convention, the interpretation or application of which are at Article 6 issue. If the parties do not agree on the subject matter of the Unless the parties to the dispute otherwise agree, the arbitral dispute, the arbitral tribunal shall determine the subject matter. tribunal shall determine its own rules of procedure.

Article 3 Article 7 1. In disputes between two parties, the arbitral tribunal shall The arbitral tribunal may, at the request of one of the Parties, consist of three members. Each of the parties to the dispute recommend essential interim measures of protection. shall appoint an arbitrator and the two arbitrators so appointed shall designate by common agreement the third Article 8 arbitrator, who shall be the Chairman of the tribunal. The 1. The parties to the dispute shall facilitate the work of the latter shall not' be a national of one of the parties to the arbitral tribunal and, in particular, using all means at their dispute or of any riparian State of the watercourse disposal, shall: concerned, nor have his or her usual place of residence in (a) Provide it with all relevant documents, information the territory of one of these parties or such riparian State, and facilities; and nor have dealt with the case in any other capacity. (b) Enable it', when necessary, to call witnesses or experts 2. In disputes between more than two parties, parties in the and receive their evidence. same interest shall appoint one arbitrator jointly by 2. The parties and the arbitrators are under an obligation to agreement. protect the confidentiality of any information they receive 3. Any vacancy shall be filled in the manner prescribed for in confidence during the proceedings of the arbitral the initial appointment. tribunal.

Article 4 Article 9 1. If the Chairman of the arbitral tribunal has not been Unless the arbitral tribunal determines otherwise because of the designated within two months of the appointment of the particular circumstances of the case, the costs of the tribunal 342 / International Watercourses Law and Its Application in South Asia Appendix / 343 shall be borne by the parties to the dispute in equal shares. The the members who have participated and the date of the tribunal shall keep a record of all its costs, and shall furnish a final decision. Any member of the tribunal may attach a final statement thereof to the parties. separate or dissenting opinion to the final decision. 3. The award shall be binding on the parties to the dispute. It Article 10 shall be without appeal unless the parties to the dispute Any Party that has an interest of a legal nature in the subject have agreed in advance to an appellate procedure. matter of the dispute which may be affected by the decision in 4. Any controversy which may arise between the parties to the case, may intervene in the proceedings with the consent of the dispute as regards the interpretation or manner of the tribunal. implementation of the final decision may be submitted by either party for decision to the arbitral tribunal which Article 11 rendered it. The tribunal may hear and determine counterclaims arising directly out of the subject matter of the dispute. •

Article 12 Decisions both on procedure and substance of the arbitral tribunal shall be taken by a majority vote of its members.

Article 13 If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or a failure of a party to defend its case shall not constitute a bar to the proceedings. Before rendering its final decision, the arbitral tribunal must satisfy itself that the claim is well founded in fact and law.

Article 14 1. The tribunal shall render its final decision within five months of the date on which it is fully constituted unless it finds it necessary to extend the time limit for a period which should not exceed five more months. 2. The final decision of the arbitral tribunal shall be confined to the subject matter of the dispute and shall state the reasons on which it is based'. It shall contain the names of 344 / International Watercourses Law and Its Application in South Asia Appendix / 345 Appendix- 5 II. Relevant factors which are to be considered include, but are not limited to: The Helsinki Rules on the Uses of the 1. The geography of the basin, including in particular the Waters of International Rivers 1966 extent of the drainage area in the territory of each basin State; CHAPTER- 1 2. The hydrology of the basin, including in particular the GENERAL contribution of water by each basin State; Article I 3. The climate affecting the basin; The general rules of international law as set forth in these 4. The past utilization of the waters of the basin, chapters are applicable to the use of the waters of an including in particular existingutilization; international drainage basin except as may be provided 5. The economic and social needs of each basin State; otherwise by convention, agreement or binding custom among 6. The population dependent on the waters of the basin in the basin States. each basin State;

Article II 7. The comparative costs of alternative means of An international drainage basin is a geographical area satisfying the economic and social needs of each basin extending over two or more States determined by the watershed State; limits of the system of waters, including surface and 8. The availability of other resources; underground waters, flowing into a common terminus. 9. The avoidance of unnecessary waste in the utilization of waters of the basin; Article III 10. The practicability of compensation to one or more of A "basin State" is a State the territory of which includes a the co-basin States as a means of adjusting conflicts portion of an international drainage basin. among uses; and 11. The degree to which the needs of a basin State may be CHAPTER- 2 satisfied, without causing substantial injury to a co- EQUITABLE UTILIZATION OF THE WATERS OF AN INTERNATIONAL DRAINAGE BASIN basin State. III. The weight to be given to each factor is to be determined Article IV by its importance in comparison with that of other relevant Each basin State is entitled, within its territory, to a reasonable factors. In determining what is reasonable and equitable and equitable share in the beneficial uses of the waters of an share, all relevant factors are to be considered together and international drainage basin. a conclusion reached on the basis of the whole.

Article V Article VI I. What is a reasonable and equitable share within the A use or category of uses is not entitled to any inherent meaning of article IV to be determined in the light of all preference over any other use or category of uses. the relevant factors in each particular case. 346 / International Watercourses Law and Its Application in South Asia Appendix / 347

Article VII international drainage basin which would cause A basin State may not be denied the present reasonable use of substantial injury in the territory of a co-basin State; the waters of an international drainage basin to reserve for a co- (b) Should take all reasonable measures to abate existing basin State a future use of such waters. water pollution in an international drainage basin to such an extent that no substantial damage is caused in Article VIII the territory of a co-basin State. 1. An existing reasonable use may continue in operation 2. The rule stated in paragraph 1 of this article applies to unless the factors justifying its continuance are outweighed water pollution originating: by other factors leading to the conclusion that it be (a) Within a territory of the State, or modified or terminated so as to accommodate a competing (b) Outside the territory of the State, if it is caused by the incompatible use. State's conduct. 2.(a) A use that is in fact operational is deemed to have been an existing use from the time of the initiation of construction Article XI directly related to the use or, where such construction is not 1. In the case of a violation of the rule stated in paragraph 1 required, the undertaking of comparable acts of actual (a) of article X of this chapter, the State responsible shall implementation. be required to cease the wrongful conduct and compensate (b) Such a use continues to be an existing use until such time the injured co-basin State for the injury that has been as it is discontinued with the intention that it be abandoned. caused to it. 3. A use will not be deemed an existing use if at the time of 2. In a case falling under the rule stated in paragraph 1 (b) of becoming operational it is incompatible with an already article X, if a State fails to take reasonable measures, it existing reasonable use. shall be required promptly to enter into negotiations with the injured State with a view towards reaching a settlement CHAPTER- 3 equitable under the circumstances. POLLUTION CHAPTER- 4 Article IX NAVIGATION (Articles XII-XX) As used in this chapter, the term "water pollution" refers to any detrimental change resulting from human conduct in the natural CHAPTER- 5 composition, content, or quality of the waters of an TIMBER FLOATING (ArticlesXXI-XXV) international drainage basin. CHAPTER- 6 Article X PROCEDURES FOR THE PREVENTION AND 1. Consistent with the principle of equitable utilization of the SETTLEMENT OF DISPUTES waters of an international drainage basin, a State: (a) Must prevent any new form of water pollution or any Article XXVI increase in the degree of existing water pollution in an This chapter relates to procedures for the prevention and settlement of international disputes as to the legal rights or 348 / International Watercourses Law and Its Application in South Asia Appendix / 349 other interests of basin States and of other States in the waters make an assessment of the probable effect of the proposed of an international drainage basin. alteration. 3. A State providing the notice referred to in paragraph 2 of Article XXVII this article should afford the recipient a reasonable period Consistently with the Charter of the United Nations, States are of time to make an assessment of the probable effect of the under an obligation to settle international disputes as to their proposed construction or installation and to submit its legal rights or other interests by peaceful means in such a views thereon to the State furnishing the notice. manner that international peace and security and justice are not 4. If a State has failed to give the notice referred to in endangered. paragraph 2 of this article, the alteration by the State in the regime of the drainage basin shall not be given the weight It is recommended that States resort progressively to the means normally accorded to temporal priority in use in the event of prevention and settlement of disputes stipulated in articles of a determination of what is a reasonable and equitable XXIX to XXXIV of this chapter. share of the waters of the basin.

Article XXVIII Article XXX 1. States are under a primary obligation to resort to means of In case of a dispute between States as to their legal rights or prevention and settlement of disputes stipulated in the other interests, as defined in article XXVI, they should seek a applicable treaties binding upon them. solution by negotiation.. 2. States are limited to the means of prevention and settlement of disputes stipulated in treaties binding upon Article XXXI them only to the extent provided by the applicable treaties. 1. If a question or dispute arises which relates to the present or future utilization of the waters of an international Article XXIX drainage basin, it is recommended that the basin States 1. With a view to preventing disputes from arising between refer the question or dispute to a joint agency and that they basin States as to their legal rights or other interest, it is request the agency to survey the international drainage recommended that each basin State furnish relevant and basin and to formulate plans or recommendations for the reasonably available information to the other basin States fullest and most efficient use thereof in the interests of all concerning the waters of a drainage basin within its such States. territory and its use of, and activities with respect to, such 2. It is recommended that the joint agency be instructed to waters. submit reports on all matters within its competence to the 2. A State, regardless of its location in a drainage basin, appropriate authorities of the member States concerned. should in particular furnish to any other basin State, the 3. It is recommended that the member States of the joint interests of which may be substantially affected, notice of agency in appropriate cases invite non-basin States which any proposed construction or installation which would alter by treaty enjoy a right in the use of the waters of an the regime of the basin in a way which might give rise to a international drainage basin to associate themselves with dispute as defined in article XXVI. The notice should the work of the joint agency or that they be permitted to include such essential facts as will permit the recipient to appear before the agency. 350 / International Watercourses Law and Its Application in South Asia Appendix / 351

Article XXXII Article XXXVI If a question or a dispute is one which is considered by the Recourse to arbitration implies the undertaking by the States States concerned to be incapable of resolution in the manner set concerned to consider the award to be given as final and to forth in article XXXI, it is recommended that they seek the submit in good faith to its execution. good offices, or jointly request the mediation of a third State, of a qualified international organization or of a qualified person. Article XXXVII The means of settlement referred to in the preceding articles of Article XXXIII this chapter are without prejudice to the utilization of means of 1. If the States concerned have not been able to resolve their settlement recommended to, or required of, members of dispute through negotiation or have been unable to agree regional arrangements or agencies and of other international on the measures described in articles XXXI and XXXII, it organizations. is recommended that they form a commission of inquiry or • an ad hoc conciliation commission, which shall endeavor to find a solution, likely to be accepted by the States concerned, of any dispute as to their legal rights. 2. It is recommended that the conciliation commission be constituted in the manner set forth in the annex.

Article XXXIV It is recommended that the States concerned agree to submit their legal disputes to an ad hoc arbitral tribunal, to a permanent arbitral tribunal or to the International Court of Justice if: (a) A commission has not been formed as provided in article XXXIII, or (b) The commission has not been able to find a solution to be recommended, or (c) A solution recommendedhas not been accepted by the States concerned, and (d) An agreement has not been otherwise arrived at.

Article XXXV It is recommended that in the event of arbitration the States concerned have recourse to the Model Rules on Arbitral Procedure prepared by the International Law Commission of the United Nations at its tenth session b/in 1958.

352 / International Watercourses Law and Its Application in South Asia Bibliography / 353 Bernhard, R. (ed), Encyclopaedia of Public International Law: Decisions of International Courts and Tribunal and Bibliography International Arbitration, the Hague: North-Holland Company, 1981.

Akehurst, M., “Equity and General Principles of Law”, (1976) Birnie, P. W. & Boyle, A., Basic Documents on International Law and the Environment, Oxford: Clarendon Press, 1995. 25 International and Comparative Law Quarterly 801.

Allee, D. J. "Sub-national Governance and the International Bissell, R., “Recent Practice of the Inspection Panel of the Joint Commission: Local Management of United States and World Bank”, (1994) 91 American Journal of International Law 741. Canadian Boundary Waters”, (1993) 33 Natural Resources Journal 133. Biswas, A. K., “Indus Water Treaty: Negotiating Process”, (1992) 17 Water International 201. Anand, R. P., Confrontation or Cooperation? International Law and the Developing Countries, Dordrecht: Martinus ------, International Waters of the Middle East, From the Euphrates-Tigris to Nile, Oxford: Oxford University Press, Nijhoff, 1987. 1994. Anthea, E. R., “Traditional and Modern Approach to ------, “Water for the Sustainable Development of South and Customary International Law: A Reconciliation”, (2001) 95 Southeast Asia in the Twenty First Century”, A. K. Biswas & American Journal of International Law 757. T. Hashimato, (eds) Asian International Waters: From Ganges, Asfuddowalah, M., Sharing of Transboundary River: The Brahmaputra to Mekong, Oxford: Oxford University Press, 1996. Ganges Tragedy, in M. I. Glassner (ed), The United Nations at Work, Westport, Connecticut: Praeger, 1998. Blay, S. K., "Current Development: New Trends in the Protection of the Antarctic Environment: The 1991 Madrid Baral, L. R., "Political System and the Elite Behaviour in the Protocol", (1992) 86 American Journal of International Law Context of India-Nepal Relations", K. B. & M. P. Lama (eds), 377. New Perspective on India-Nepal Relations, New Delhi: Har- Anand Publication, 1988. Boadu, F. O., “Rational Characteristics of Trans-Boundary Water Treaties: Lesotho Water Transfer Treaty with the Barber, F. J., Rivers in International Law, London: the London Republic of South Africa”, (1998) 88 Natural Resources Institute of World Affairs, Translated by R. K. Baxter, 1959. Journal 381.

Bastola, S. N., Water Resources Development of Mighty Bourne, C. B., "Mediation, Conciliation and Adjudication in Himalayan Rivers, Kathmandu: S. Bastola, 1994. the Settlement of International Drainage Basin Disputes", (1971) X Canadian Yearbook of International Law 114. Baxi, U. “The New International Economic Order, Basic Needs and Rights: Notes Towards Development of the Right to ------, “The Development of International Water Resources: Development”, (1983) 23 Indian Journal of International Law The Drainage Basin Approach”, (1969) 47 Canadian Bar Review 72. 225.

354 / International Watercourses Law and Its Application in South Asia Bibliography / 355

------, “The International Law Commission’s Draft Articles on Caponera, D. A., "Legal Aspects of Transboundary River the Law of International Watercourses: Principles and Planned Basins in the Middle East: The Al Asi (Orontes), The Jordan Measures”, (1992) 3 Colorado Journal of International and the Nile", (1993) 33 Natural Resources Journal 631. Environmental Law & Policy 65. -----, “Patterns of Co-operation in International Water Law;

------, "Procedure in the Development of International Drainage Regulation versus Market Place,” (1985) 25 Natural Resources Journal 563. Basins: Notice and Exchange of Information" (1972) 22 University of Toronto Law Journal 205. -----, (ed), Food and Agriculture Organization, (FAO), The Law

------, “The Right to Utilise the Waters of International Rivers”, of International Water Resources, Rome: FAO Legislative Study No 23, 1980. (1965) II Canadian Yearbook of International Law 190.

------,"The Primacy of the Principle of Equitable Utilization in Chauhan, B. R., Settlement of International and Inter-State Water Disputes in India, Bombay: Indian Law Institute, 1992. the 1997 Watercourse Convention", (1997) XXXV Canadian Yearbook of International Law 215. -----, Settlement of International Water Law Disputes in

-----, “The International Law Association’s Contribution to International Drainage Basins, Berlin: Eric Schmidt Verlag, 1981. International Water Resources Law” (1996) 36 Natural Resources Journal 155. Chochai, P., “Management of Transboundary Water Resources:

Brown, D., Ashburner’s Principles of Equity, London: A Case Study of the Mekong”, Martin Ira Glassner (ed), The United Nations at Work, Westport, Connecticut: Praeger, 1998. Butterworth, 1933.

Brunnee, J. & Toope, S. J., “Environmental Security and Chowdhury, S. R., “Intergenerational Equity: Substratum of the Freshwater Resources”, (1997) 91 American Journal of Right to Development”, S. R. Chowdhury, E. M. G. Denters & International Law 26. Paul J. M. De Waart (eds), The Right to Development in International Law, Dordrecht: Martinus Nijhoff, 1992. ------& ------, “The Changing Nile Basin Regime: Does Law Matter?”, (2002) 43 Harvard International Law Journal 105. Christie, I. & Warburton, D., From Here to Sustainability: Politics in the Real World, London: the Real World Coalition, Caflish, L., “Regulation of the Uses of International Earthscan Publication, 2001. Waterways: The Contribution of the United Nations”, in M. I. Glassner (ed), The United Nations at Work, Westport, Clarke, R., Water: the International Crisis, London: Earthscan Publication, 1991. Connecticut: Praeger Publication, 1998.

------, “Judicial Means for Settling Water Disputes”, Crook, J. R. & McCaffrey, S. C., "The United Nations Start Permanent Court of Arbitration (edited), Resolution of Work on a Watercourse Convention", (1997) 91 American Journal of International Law 374. International Water Disputes, the Hague: Kluwer Law International, 2003. Crow, B., Lindquist A. & Wilson, D., Sharing the Ganges: The

------, “Unequal Treaties”, (1992) 35 German Yearbook of Politics and Technology of River Development, New Delhi: Saga Publication, 1995. International Law 520.

356 / International Watercourses Law and Its Application in South Asia Bibliography / 357

Dhungel, H., “Risks and Rewards of Mega-Projects: the Gulhati, N. D., Development of Inter-State Rivers: Law and Political-Economy of Paraguan Hydropower”, (1999) 7 Water Practices in India, New Delhi: Allied Publisher, 1982. Nepal 25. Gywali, D., Water in Nepal, Kathmandu: Himal books and Dubey, M., "Some Reflection on Indo-Nepal Relations", in L. Panos Asia, 2001.

Baral (ed), Looking to the Future: Indo-Nepal Relations in -----, “Himalayan Water: Between Euphoric Dreams and Perspective, New Delhi: Anmol Publication, 1996. Ground Realities”, K. Bahadur & M. P. Lama (eds), New Dixit, A., Water Science, Kathmandu: 2002. Perspectives on Indo-Nepal Relations, New Delhi: Har-Ananda Publication, 1995. Fano, E., “Brief Comments on the United Nations Water Conference”, in A. E., Utton and Ludwik, T. (eds), Water in the Harris, D. J., Cases and Materials on International Law, Developing World, Boulder, Colorado: Westview Press, 1978. London: Sweet and Maxwell, 1998.

Fitzmaurice, M., “Water Management in the 21st Century”, in Higgins, R., Problems and Process: International Law and A. Anghie and G. Sturgess (eds), Legal Visions of the 21st How We Use it, Oxford: Clarendon Press, 1995.

Century: Essays in Honour of Judge Christopher Weeramantry, His Majesty's Government, Nepal, The Ninth Plan 1998-2002, the Hague: Kluwer Law, 1998. Kathmandu, Nepal.

Frank, T. M. & Sughraue, D. M., "The International Role of InGram, H. & White, D. R., "International Boundary and Water Equity-as-Fairness", (1993) 81 Georgetown Law Journal 564. Commission: An Institutional Mismatch for Resolving French, D. A., "The Role of International Law in the Transboundary Water Problems", (1993) 33 Natural Resources Achievement of Intergenerational Equity", (2001) 31 the Journal 153. Environmental Law Reporter 10469. International Law Association Fifty-Second Conference (1966) -----, “Developing States and International Environmental Law: Helsinki Rules.

The Importance of Differentiated Responsibilities”, (2000) 49 International Law Association: Report of the Forty-Eighth International and Comparative Law Quarterly 36. Conference (1958), New York.

Fuentes, X., “Sustainable and Equitable Utilisation of International Law Association: Report of the Forty-Ninth International Water Course”, (1999) 69 British Yearbook of Conference, (1960) Hamburg. International Law 119. Iyer R. R. , "Rising Rivers, Arid Lands: Interlinking will not Gibbon, I. C., "The Scope of Acquiescence in International Solve the Problem" July 20, (2004) The Times of India. Law", (1954) 31 British Yearbook of International Law147. Iyer R. R. , "Making of a Subcontinent Fiasco" Himal South Goldberg, D., “World Bank Policy on International Waterways Asian, August (2003), pp.1-8. in the Context of the International Law and the Work on International Law Commission”, in G. H. Blake, W. J. Jackson, B., Poverty and the Planet: A Question of Survival, Hildesly, M. A. Pratt, R. J. Ridley & C. H. Schofield (eds), The London: World Development Movement (WDM), Penguin Peaceful Management of Transboundary Resources, Dordrecht: Books, 1994.

Graham & Troatmat/ Martinus Nijhoff, 1995.

358 / International Watercourses Law and Its Application in South Asia Bibliography / 359

Jacobs, M., The Politics of the Real World, London: The Real Lowe, V., "The Role of Equity in International Law", (1992) 12 World Coalition, Earthscan Publication, 1996. Australian Yearbook of International Law 56.

JBR., P. S., "Nepal India Relations: Water Resources", in Lok LeMarquand, D., "The International Joint Commission and Raj Baral (ed), Looking to the Future: Indo-Nepal Relations in Changing Canada-United States Boundary Relations", (1993) Perspective, New Delhi: Anmol Publication, 1996. 33 Natural Resources Journal 59.

Johnson, R. W., “The Columbia Basins”, A. H. Garretson, R. Marty, F. A., “The Pancheshwar Multipurpose Project on the D. Hayton & C. J. Olmstead (eds), The Law of International Mahakali River (India-Nepal)” in Managing International Drainage Basins, New York: Oceana Publication, 1967. Rivers Problems, Politics and Institutions, P. Lang, European

Josse, M. R., “The Case for New Thinking”, (1994) 4 Water Academic Pub, Bern: Swiss Federal Institute of Technology, Centre for Comparative and International Studies, 2001. Nepal 260.

Kaushik, P. D., “Indo-Nepal Relations and Gujral Doctrine- Mukarij, A., “Nepal: Is Destabilization the Name of the Game” Bouquets and Brickbats”, in M. Dharmdasani (ed), India and in A. Sen (ed) India’s Neighbours: Problems and Prospects, New Delhi: Har-Anand, 2001. Nepal: Big Power-Small Power Relations in South Asia, New Delhi: South Asian Publishers, 2001. Mass, C. D., “South Asia: Drawn Between Cooperation and

Kelley, J. P., “The Twilight of Customary International Law”, Conflict”, Eric Gonsalves & Nancy Jetly (eds), The Dynamic of (2000) 40 Virginia Journal of International Law 3. South Asia: Regional Cooperation in South Asia, New Delhi: Manohar Publisher, 1997. Kliot, N., Water Resources and Conflict in the Middle East, London: Routledge, 1994. McCaffrey, S. C, “Water Disputes Defined: Characteristics and Trends for Resolving Them”, International Bureau of the Kollars, J., "Problems of International River Management: The Permanent Court of Arbitration (ed) Resolution of International Case of the Euphrates”, A. K. Biswas (ed), International Water Disputes, the Hague: Kluwer Law International, 2003. Waters of the Middle East From the Euphrates, the Tigris to the Nile, Oxford: Oxford University Press, 1994. ------& Sinzela, M., “The United Nations Convention on International Watercourses”, (1998) 92 American Journal of Krishana, R., “The Evolution and Context of the Bank Policy International Law 99. for Projects on International Waterways”, in S. M. A. Salman & B. de Chazournes (eds) International Watercourses: McCaffrey, S. C., The Law of International Watercourses: Non-Navigational Use, Oxford: Oxford University Press, 2001. Enhancing Cooperation and Management of Conflict, Washington DC: the World Bank Technical Paper No 414, -----, "The Harmon Doctrine One Hundred Years Later: Buried, The World Bank,1998. not Praised", (1996) 36 Natural Resources Journal 725.

Lammers, J. G, The Pollution of International Watercourses, -----, “A Human Right to Water: Domestic and International The Hague: Martinus Nijhoff Publisher, 1984. Implications”, (1992) 5 Georgetown International Environmental Law Review 1. Lipper, J., "Equitable Utilisation" A .H. Garretson, R .D. Hayton & C. J. Omstead (eds), The Law of the International -----, “Background and Overview of the International Law Drainage Basins, New York: Oceana Publication,1967. Commission’s Study of the Non-Navigational Uses of

360 / International Watercourses Law and Its Application in South Asia Bibliography / 361

International Watercourses”, (1992) 3 Colorado Journal of -----, India and Nepal: a Changing Relationship, New Delhi: International Environmental Law and Policy 18. Konark Publisher, 1996.

-----, “The International Law Commission Adopt Draft Articles Murakami, M., Managing Water for Peace in the Middle East: on International Watercourse”, (1995) 89 American Journal of Alternative Strategies, Tokyo: United Nations University, International Law 395. 1995.

-----, “The Law of International Watercourses: Some Recent Murphy, S. D., “Contemporary Practice of the United States Development and Unanswered Questions”, (1989) 15 Denver Relating to International Law - Trade Development Between Journal of International Law and Policy 505. the United States and Sub-Saharan Africa”, (2002) 96 American Journal of International Law 956. -----, “The UN Convention on the Law of the Non-Navigational Use of International Watercourses: Process and Pitfalls”, M. A. Naff, T., & Matson, R. C., Water in the Middle East: Conflict Salman & B. de Chazournes (eds) International Watercourse: or Cooperation, Boulder, Colorado: Westview Press, 1984.

Enhancing Cooperation and Managing Conflict, Washington Newman, R. A., “The Principles of Equity as a Source of DC: World Bank Technical Paper 414, 1998. World Law”, (1966) 1 Israel Law Review 630.

McDonald, R. St, “Charles B. Bourne: Scholar, Teacher and -----, (ed), Equity in the World’s Legal System, Brussels: Editor, Innovator in the Development of International Law of Establishments Emile Bruylant, 1973. Watercourses”, (1997) XXXV Canadian Yearbook of International Law 53. -----, Equity and Law: A Comparative Study, New York: Oceana Publication, 1961. McIntyre, O., "The Law Relating to the Use of International Water Resources: 4 Tools for Equity", (1997) 6 Water Oxman, B. H., " The Third United Nations Conference on the International 23. Law of the Sea: the Eight Session (1979)", (1980) 74 American Journal of International Law 32. Moffat, I., Sustainable Development: Principles, Analysis and Policies, London: Parthenon Publishing Group, 1996. -----, "The Third United Nations Conference on the Law of the Sea: the Ninth Session (1980)”, (1981) 75 American Journal of Momtaz, D., “The United Nations and Protection of the International Law 211. Environment”, M. I., Glassner (ed), The United Nations at Work, Westport, Connecticut: Praeger, 1998. -----, "The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981)”, (1982) 76 American Journal Muchinski, P., Multinational Enterprises and the Law, London: of International Law 14. Blackwell Publishers, 1997. Paisley, R., “Adversaries into Partners: International Water Mumme, S., "Innovation and Reform in Transboundary Law and the Equitable Sharing of Downstream Benefits”, Resource Management: a Critical Look at the International (2002) 3 Melbourne Journal of International Law 280. Boundary and Water Commission, United States and Mexico", (1993) 33 Natural Resources Journal 103. Panday, D. R., Nepal's Failed Development: Reflections on the Mission and the Maladies, Kathmandu: Nepal South Asia Muni, S. D., Foreign Policy of Nepal, New Delhi: National Centre, 1999. Publishing House, 1973.

362 / International Watercourses Law and Its Application in South Asia Bibliography / 363

Piper, D. C., "International Law as an Environment for Shah, R., "Politics of Water Power in Nepal", (1994) 4 Water Municipal Litigation: the Chicago Diversion Cases”, (1968) 62 Nepal 286.

American Journal of International Law 451. -----, “New Directions in Nepal-India Relations”, K. Bahadur & Prasad, K., “Priority and Institutional Development”, (1994) 4 M. P. Lama (eds), New Perspectives on India-Nepal Relations, Water Nepal 221. New Delhi: Har-Anand Publications, 1995.

Prabhu S., "Garland of Hope: River-linking as a Solution to Sarup, A., “Transit Trade of Land-Locked Nepal”, (1972) 2 Water Crisis" August 14, (2004), Times of India International & Comparative Law Quarterly 287.

Robinsion, N. A. (ed), IUCN Environmental Policy & Law, Schwebel, S. M, “The Judgment of the International Court of Paper no 27: Agenda 21 Earth’s Action, New York: Oceana Justice in the Case Concerning the Gavcikovo-Nagymaros Publication Inc, 1993. Project (Hungary-Slovakia)”, Permanent Court of Arbitration Rosenne, S, “The Position of the International Court of Justice (ed), Resolution of International Water Disputes, the Hague: on the Foundation of the Principles of Equity in International Kluwer Law International, 2003.

Law”, in A. Boyle & P. Van Dijik (eds), Forty Years: Sharma, C. K., A Treatise on Water Resources of Nepal, International Court of Justice, the Hague: Europa Institute Kathmandu: Sangita Sharma, 1999. Utrecht,1988. -----, Water and Energy Resources of the Himalayan Block, Rosentock, R., "Current Development: Forty-sixth Session of Kathmandu: Sangeeta Sharma, 1983. the International Law Commission- International Watercourses", (1995) 89 American Journal of International Sherk, D. W., Dividing the Waters: The Resolution of Inter- Law 392. State Water Conflicts in the United States, the Hague: Kluwer Law International, 2000. Rossi, C. R., Equity and International Law: A Legal Approach to International Decision Making, New York: Transnational Shrestha, H. M & Singh, L. M, "The Ganges-Brahmaputra Publisher, 1993. System: A Nepalese Perspective in the Context of Regional Co- operation", A. K. Biswas & T. Hashimoto (eds), Asian Salman, M. A. Salman & Uprety, Kishor, Conflict and International Waters: From Ganges-Brahmaputra to Mekong, Cooperation on South Asia’s International Rivers: A Legal Oxford: Oxford University Press, 1996. Perspective, the Hague: Kluwer Law International, 2003. Shrestha, G. D., "Himalayan Waters: Need for Positive Indo------& -----, "Hydro Politics in South-Asia: A Comparative Nepal Co-operation" , (1994) 4 Water Nepal 272. Analysis of the Mahakali and the Ganges Treaties", (1999) 39 Natural Resources Journal 151. Sinha, C. P., "Sediment Management; A Co-operative Indo- Nepal Venture", (1991), 4 Water Nepal 158. Sands, P., "International Law in the Field of Sustainable Development", (1994) XXV British Yearbook of International Smets, H., “The Right to Water as a Human Rights”, (2001) 31 Law 340. Environmental Policy and Law 248.

-----, Principles of International Environmental Law, New Smith, H. A., The Economic Use of International Rivers, York: Manchester University Press, 1995. London: P. S. King & son, 1931.

364 / International Watercourses Law and Its Application in South Asia Bibliography / 365

Soffer, A., Rivers of Fire: The Conflicts over Water in the Resolution of International Water Disputes, the Hague: Kluwer Middle East, Translated by M. Rosovsky and N. Copaken, Law International, 2003.

Lanham, Maryland: Rewman & Littlefield Publication, 1999. Tanzi, A. and Arcari, M., The United Nations Conventions on Subba, B., "Tapping Himalayan Water Resources" Problems, the Law of International Watercourses, the Hague: Kluwer Opportunities and Prospects from a Bhutanese Perspective", Law International, 2001. (1994) 4 Water Nepal, 1994. Teclaff, L., “Harmonizing Water Use and Development with -----, Himalayan Waters, Kathmandu: Panos South Asia, 2001. Environmental Protection”, Albert Utton & Ludwik Teclaff Subedi, S. P., “Indo-Nepal Relations; the Cause of Conflict and (eds), Water in the Developing World: The Management of Their Resolution”, in S. K. Mitra & D. Rothermuds. (eds), Critical Resources, Boulder, Colorado: Westview Press, 1978.

Legitimacy and Conflict in South Asia, New Delhi: Manohar, Todd, P., Cases and Materials on Equity and Trust, London: 1997. Blackstone, 1996. -----, “Transit Arrangements between Nepal and India: A Study Tutu A. A. , "The Farakka Barrage: A Diary of India's Coercive in International Law,” D. Hodder, S. J. Lloyd and K. Diplomacy in Practice" 1 Prasix Journal, (2003), pp. 36-40.

McLachlan (eds), Geopolitics and International Boundaries, Toth, F. L., Fair Weather? Equity Concerns in Climate volume 2, London: Frank Cass, 1997. Change, London: Earthscan, 1999. -----, “The Hydro Politics of South Asia: the Conclusion of the Thakkar H. , "Flood of Nonsense: How to Manufacture Mahakali and Ganges River Treaties”, (1999) 93 American Consensus for River-Linking" Himal South Asian, August Journal of International Law 953. (2003), pp. 1-5.

-----, “The United Nations and the Trade and Transit Problems Trelease, V, "Arizona versus California: Allocation of Water of Land-Locked States”, M. I. Glassener (ed) The United Resources to the People, States and Nation”, Phillip B. Kurland Nations at Work, Westport, Connecticut: Prager, 1998. (ed) Supreme Court Review, Colorado: the University of Chicago Press, 1963. -----, "Regulation of Shared Water Resources in International Law: the Challenge of Balancing Competing Demands", Upreti, B. C., Politics of Himalayan River Waters, New Delhi: (2002), 1 & 2 Nepal Law Review, Kathmandu: Tribhuvan Nirala Publication, 1993. University, Institute of Law 1. -----, Uneasy Friends: Readings on Indo-Nepal Relations, New -----, “The Road from Doha: the Issues for the Development Delhi: Kalinga Publication, 2001.

Round of the WTO and the Future of International Trade”, Upreti T. , "India's River-linking Project and Nepal's Concern" (2003) 52 International & Comparative Law Quarterly 426. (23/4/ 2004), The Kathmandu Post.

-----, “Incorporation of the Principle of Sustainable U. Shankari (ed), Interlinking Rivers: Contradictions & Development into the Development Policies of the Asian Confrontations, A Report on electronic debate, New Delhi: Countries”, (2002) 32 Environmental Policy & Law 85. Centre for the Study of the Developing Societies, 2004, pp. 24------, “Resolution of International Water Disputes: Challenges 37. for the 21st Century”, Permanent Court of Arbitration (ed.), 366 / International Watercourses Law and Its Application in South Asia Bibliography / 367

Utton, A. E., “In Search of an Integrating Principle for Inter- Canada and the United States", (1992), XXX Canadian State Water Law: Regulations versus Market Place”, (1985) 25 Yearbook of International Law 60. Natural Resources Journal 992. II Yearbook of the International Law Commission, United Vascinnie, S. C., Land-Locked and Geographically Nations, Geneva, (1974).

Disadvantaged States in the International Law of the Sea, I Yearbook of the International Law Commission, United Oxford: Clarendon Press,1990. Nations, Geneva, (1982).

Verghese, B. G, The Waters of Hope, New Delhi: Oxford and I Yearbook of the International Law Commission, United IBH Publishing, 1990. Nations, Geneva, (1983).

Verghese, B. G., Iyer, R. R., Ahamad, P. K., Pradhan B. B & S. I Yearbook of the International Law Commission, United K. Malla, (eds), Converting Water Into Wealth: Regional Co- Nations, Geneva, (1986). operation in Harnessing the Eastern Himalayan Rivers, New- Delhi: Konark Publisher, 1994. I Yearbook of the International Law Commission, United Nations, Geneva, (1987). Verghese, B. G. & Iyer, R. R., Harnessing the Eastern Himalayan Rivers: Regional Cooperation in South Asia, New- II Yearbook of the International Law Commission, United Delhi: Konark Publisher, 1994. Nations, Geneva, (1988).

Water and Energy Commission, His Majesty’s Government of II Yearbook of the International Law Commission, United Nepal, Water Resources Strategy 2002, Kathmandu, 2002. Nations, Geneva, (1989).

Wolf, A. T., Hydro Politics along the Jordan River: Scarce II (part two) Yearbook of the International Law Commission, Water and Its Impact on the Arab-Israeli Conflict, Tokyo: United Nations, Geneva, (1990).

United Nations University Press, 1995. II (part two) Yearbook of the International Law Commission, Wolf, A. T., "Hydro-Political History of the Nile, Jordan and United Nations, Geneva, (1991).

Euphrates River Basins" , A. K. Biswas (ed.), International II (part two)Yearbook of the International Law Commission, Waters of the Middle East: From Euphrates -Tigris to Nile, United Nations, Geneva, (1994). Oxford: Oxford University Press,1994. Zacklin, R. & Caflish, Lucius (eds.), The Legal Regime of Wouters, P., “Universal and Regional Approaches to Resolving International Rivers and Lakes, Dordrecht: Martinus Nijhoof, International Water Disputes: What Lessons Learned from 1981. State Practice”, Resolution of International Water Disputes, the Hague: Kluwer Law, 2003.

-----, (ed.), International Water Law: Selected Writings of Professor Charles B. Bourne, the Hague: Kluwer Law, 1997.

-----, "Allocation of the Non-Navigational Use of International Watercourses: Efforts at Codification and the Experience of