India now plans to build a big river-linking-project that includes diversion of vast quantities of

water from the major river basins through transfer of water from “surplus river basins” to
“deficit river basins” in the country. The proposed project has become a source of tension
between Indian and the downstream nations which would be adversely affected by the
diversion. Bangladesh alleges that India by its action has caused harm to Bangladesh and thus
violated International law. Bangladesh is demanding 40% of total flow of water as they believe
will constitute equitable sharing. Bangladesh argues that India before constructing barrages on
their side of the river and before the river linking project has not consulted Bangldesh as
required under international law.

Legal question
1. Does India’s Interlinking of rivers will adversely affect the principle of Equitable
water Distribution.
2. Has India Breached International obligation of no Trans boundary harm and
Consultation

Theories and doctrines of international water law

The theoretical foundation of the principles of international water law related to transboundary
water resources management evolves from different theories and doctrines. This section
summarizes three major ones:

1 theory of absolute territorial sovereignty

2 theory of absolute territorial integrity

3 theory of limited territorial sovereignty.

Theory of absolute territorial sovereignty:

Every nation can utilize the waters of an international river flowing on its territory, as it likes,
regardless of the consequences in other countries and without the duty to consult.1 According
to this theory, the upstream states would be free to divert all the water from a shared
watercourse without considering the need for downstream states2 this theory also known as

1
Correia, F.N. and Silva, J.E. (1999) ‘International framework for the management of transboundary water
resources’, Water International, Vol. 24, pp.86–94.
2
McCaffrey, S.C. (1996) ‘The harmon doctrine one hundred years later: buried, not praised’, Natural Resources
Journal, Vol. 36, pp.549–590.
the Harmon Doctrine.3 This theory has a little support in state practice and does not
represent international law.

Theory of absolute territorial integrity:

This theory is based on the assertion that the lower riparian of an international river has the right
to a full flow of water of natural quality and interference with the natural flow by the upstream
state require the consent of the downstream riparian. Therefore, the lower riparian has the right
to claim the continued and uninterrupted flow of water from the territory of the upper riparian,
‘no matter what the priority’.4 Often downstream states support this theory as it guarantees them
the use of an international river in an unaltered condition. Like the Harmon doctrine, this theory
has limited support in state practice, jurisprudence or the writings of commentators.5

Theory of limited territorial sovereignty:

This theory is based on the assertion that every state is free to use shared rivers flowing on its
territory as long as such utilisation does not prejudice the rights and interests of the co-riparians.
In this case, sovereignty over shared water is relative and qualified. The co-riparians have
reciprocal rights and duties in the utilisation of the waters of their international watercourse and
each is entitled to an equitable share of its benefits. This theory is also known as theory of
sovereign equality and territorial integrity. The advantage of this theory is that it simultaneously
recognises the rights of both upstream and downstream countries as its guarantees the right of
reasonable use by the upstream country in the framework of equitable use by all interested
parties. Principles of equitable and reasonable utilisation and obligation not to cause significant
harm are the part of the theory of limited territorial sovereignty. 6 Only this theory has gained
wide acceptance and formed the basis of modern international water law.7

3
The US Attorney General, Mr. Judson Harmon, who declared the absolute right of the USA to divert the Rio-
Grande in 1895. He commented, “The fact that the Rio Grande lacks sufficient water to permit its use by the
inhabitants of both countries does not entitle Mexico to impose restrictions on the USA which would hamper the
development of the latter’s territory or deprive its inhabitants of an advantage with which nature had endowed it
and which is situated entirely within its territory. To admit such a principle would be completely contrary to the
principle that USA exercises full sovereignty over its national territory”
4
Barandat, J. and Kaplan, A. (1998) ‘International water law: regulations for cooperation and the discussion of the
international water convention’, in W. Scheumann and M. Schiffler (Eds), Water in the Middle East: Potential for
Conflicts and Prospects for Cooperation. Berlin: Springer, pp.11–30.
5
Birnie, P. and Boyle, A. (2002) International Law and the Environment. New York, NY: Oxford University Press.
6
Schroeder-Wildberg, E. (2002) The 1997 International Watercourses Convention – Background and Negotiations.
Germany: Technical University of Berlin.
7
Salman, M.A.S. (2007a) ‘The helsinki rules, the UN watercourses convention and the berlin rules: perspectives on
international water law’, Water Resources Development, Vol. 23, pp.625–640.
Principle of equitable and reasonable utilization:

This use-oriented principle is a sub-set of the theory of limited territorial sovereignty. It entitles
each basin state to a reasonable and equitable share of water resources for the beneficial uses
within its own territory (Article IV of the Helsinki Rules 1966 and Article 5 of the UN
Watercourses Convention, 1997). Equitable and reasonable utilisation rests on a foundation of
shared sovereignty, equality of rights and it does not necessarily mean equal share of waters. In
determining equitable and reasonable share relevant factors, such as the geography of the basin,
hydrology of the basin, population dependent on the waters, economic and social needs, existing
utilisation of waters, potential needs in future, climatic and ecological factors to a natural
character and availability of other resources should be taken into account (Article V of the
Helsinki Rules, Article 6 of the UN Watercourses Convention and Article 13 of the Berlin
Rules). It entails a balance of interests that accommodates the needs and uses of each riparian
state. This principle has substantial support in state practice, judicial decisions and international
codifications. The ICJ’s 1997 decision concerning the Gabcikovo-Naymaros Project endorsed
the theory of equitable and reasonable utilisation that was incorporated in Article 5 of the UN
Watercourses Convention. This principle is incorporated in 1966 Helsinki Rules (Articles IV, V,
VII, X, XXIX), 1997 UN Watercourses Convention (Articles 5, 6, 7, 15, 16, 17, 19), 1995
SADC protocol on shared watercourse systems (Article 2), 2004 Berlin Rules (Articles 10.1, 12,
13, 14, 16) and 1992 UNECE Water Convention (Article 2.2c).

Obligation not to cause significant harm:

This principle is also a part of the theory of limited territorial sovereignty. 8 According to this
principle, no state in an international drainage basin are allowed to use the watercourses in their
territory in a way that would cause significant harm to other basin states or to their environment,
including harm to human health or safety, to the use of the waters for beneficial purposes or to
the living organisms of the watercourse systems. This principle is widely recognised by
international water and environmental law. However, question remains on the definition or
extent of the word ‘significant’ and how to define ‘harm’ as a ‘significant harm’. This principle
is incorporated in most modern international water conventions, treaties and agreements. It is
now considered as part of the customary international law. 9 This principle is incorporated in

8
Eckstein, G. (2002) ‘Development of international water law and the UN watercourse convention’, in A. Turton
and R. Henwood (Eds), Hydropolitics in the Developing World: A Southern African Perspective. South Africa:
African Water Issues Research Unit, pp.81–96.
9
Id.
1966 Helsinki Rules (Articles V, X, XI, XXIX), 1997 UN Watercourses Convention (Articles 7,
10, 12, 15, 16, 17, 19, 20, 21.2, 22, 26.2, 27, 28.1, 28.3), 1995 SADC protocol on shared
watercourse systems (Article 2), 2004 Berlin Rules (Articles 8, 10.2, 16) and 1992 UNECE
Water Convention (Articles 2.1, 2.3, 2.4, 3). This principle is also acknowledged by modern
international environmental conventions and declarations, e.g. 1972 Stockholm Declaration of
the UN Conference on Human Environment (Principles 21, 22), 1992 Rio Declaration on
Environment and Development (Principles 2, 4, 13, 24) and 1992 Convention on Biological
Diversity (Article 3).

The Berlin rules on water resources (2004), Chapter III (Articles 10–16) deals with
internationally shared waters. Article 10 ascertains that basin states have the right to participate
in the management of waters of international drainage basin in an equitable reasonable and
sustainable manner. Article 12 mentions:

“Basin States shall in their respective territories manage the waters of an international drainage
basin in an equitable manner having due regard for the obligation not to cause significant harm
to other basin States”

Peaceful settlement of disputes:

This principle advocates that all states in an international watercourse should seek a settlement of
the disputes by peaceful means, in case states concerned cannot reach agreement by negotiation.
Most modern international water conventions, treaties and agreements incorporated this
principle, e.g. 1966 Helsinki Rules (Articles XXVI–XXXVII), 1997 UN Watercourses
Convention (Article 33), 1960 Indus Waters Treaty (Article IX, Annexure F, G), 1995 SADC
protocol on shared watercourse systems (Article 7), 2004 Berlin Rules (Articles 72–73) and 1992
UNECE Water Convention (Article 22, Annex IV). This principle is also acknowledged by
modern international environmental conventions and declarations, e.g. 1992 Rio Declaration on
Environment and Development (Principle 26) and 1992 Convention on Biological Diversity
(Article 27, Annex II).

The “Lake Lanoux”-arbitration10

Disagreement arose between France and Spain when France planned a hydroelectric project that
would divert water from the Lake Lanoux into the Ariège River in France. The lake is situated

10
LAKE LANOUX ARBITRATION (FRANCE v. SPAIN) (1957) 12 R.I.A.A. 281; 24 I.L.R. 101 Arbitral
Tribunal.1 November 16, 1957.
near the French-Spanish border, but entirely on French territory. A diversion of water from the
lake would reduce the flow of the Carol River flowing from the lake and into Spanish territory,
and the project therefore provoked strong Spanish reactions. The Court of Arbitration (1957)
concluded, inter alia, that France had no duty to await Spain’s consent towards the project, as
long as the diversion had no significant consequences for the downstream riparian. The
arbitration adjudicates the relation between the upstream and downstream riparians, and their
duties towards each other.

Gabcikovo-nagymaros case:

ICJ’s decision of 25th September 1997 on the case, concerning the Gabcikovo- Nagymaros
project (ICJ, 1997) is a good example of the international applicability of the doctrine of
equitable utilisation and obligation not to cause significant harm. This case shows that an
international watercourse is constrained in part by the limits of equitable use, in part by evolving
environmental obligations and in part by considerations of sustainable development.11

The ICJ endorsed the theory of equitable and reasonable utilisation that is incorporated in
Article 5 of the 1997 UN Watercourses Convention. This is evidence that 1997 UN
Watercourses Convention is strengthening the modern development of international law and
legal practices, despite its status is not being in force.12

11
Birnie, P. and Boyle, A. (2002) International Law and the Environment. New York, NY: Oxford University Press.
12
Khalid, A.R.M. (2004) ‘The Interlinking of rivers project in India and international water law: an overview’,
Chinese Journal of International Law, Vol. 3, pp.553–570.