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Upreti, Trilochan, International Watercourses Law and Its 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.
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