In order to approach the problem of riparian rights in an objective manner, it would be helpful to consider the legal position. In international law there is a wealth of precedents on the rights and obligations of upper and lower riparians. The negation of a riparian’s right to dispose of at will the waters of an international river and the existence of the right of other riparians to make use of the system finds support in the conclusion reached by every international group that has dealt with the problem.
The Institute de Droit International stated in what has become known as the Madrid Declaration of 1911 that the regime of rivers and lakes, contiguous or successive, could not be altered by one state to the detriment of a co-riparian without the consent of the other. Interference with the utilization of waters by other riparians was banned outright.
The Geneva Convention of 1923 specially provides in Article 4 that if a state desires to develop hydraulic power, which might cause serious prejudice to any other contracting state, the states concerned shall enter into negotiations with a view to the conclusion of agreements which will allow such operations to be executed.
The Declaration of Montevideo of 1933 states in Article 2 that no state may, without the consent of the other riparian state, introduce into water courses of an international character, for industrial or agricultural exploitation of their waters, any alterations which may prove injurious to other interested states. The same principle is made applicable to successive rivers in Article 4.
The Interim American Bar Association at its Buenos Aires Conference in November 1957, adopted a statement of existing international law in which it is stated in Article 3 that riparians are under a duty to refrain from making changes which might affect adversely the use of the waters by co-riparians, unless the changes are made under an agreement or a decision of an international court or tribunal.
Not only do the terms of particular treaties reflect the principle of mutuality of rights and duties but their great number, coupled with the infrequency of instances in which riparians have disregarded the protests of interested states, testified also to arrogate to themselves the right to develop an international river oblivious of the corresponding rights of co-riparians.
To give a few examples: the treaty of Brazil-Uruguay (1933), provides that the state concerned shall not carry out the work necessary until it has come to an agreement with the other state.
The Argentina-Bolivia-Paraguay treaty of 1941 deals with the adoption of measures taken by common agreement for the utilization and development of the waters of the said river.
The Dominican Republic Treaty of Haiti of 1929 sets up a compulsory arbitration procedure and limits the parties’ right to the waters of international rivers to just and equitable uses having regard to the effect on each other’s water supplies.
The Indus Waters Treaty of 1960, between India and Pakistan, with the World Bank as a party for certain specific purposes, is itself evidence of India’s recognition and admission that she does not have any unaffected or arbitrary right as the upper riparian to divert the waters of common rivers.
Quite apart from the international treaties briefly referred to above, there are numerous examples from within a state where the rights and obligations of states in a federation have by usage and custom established certain forms that prohibit an upper riparian from interfering with the flow« of a common river without the consent of the lower riparian.
There are many instances of such regulation in the United States of America. However, it may perhaps be more profitable to quote some of the cases governing the provinces and states of India, our neighbouring country, which too is a federation of states and provinces.
In 1892, the British Indian province of Madras and the state of Mysore, after a dispute as to their respective rights, agreed to certain rules regulating the uses of the waters of the thirteen rivers in which Mysore had claimed superior rights as an upper riparian state. These rules, defining the limit within which no new irrigation works are to be constructed by the Mysore state without previous reference to the Madras Government, speak for themselves.
The Indus Basin Commission headed by Sir Benegal N. Rau accepted, among others, the following principles of law governing the rights of provinces and states with respect to water:
i. The most satisfactory settlement of disputes of this kind is by agreement, the parties adopting the same technical solution of each problem, as if they were a single community undivided by political or administrative frontiers (Madrid rules of 1911 and Geneva Convention of 1923, Articles 4 and 5).
ii. If once there is such an agreement that in itself furnishes the “law” governing the rights of the several parties until a new agreement is concluded (Judgement of the Permanent Court of International Justice 1937, in the Meuse Dispute between Holland and Belgium).
iii. If there is no such agreement, the rights of several provinces and states must be determined by applying the rules of equitable apportionment, each unit getting a fair share of water of the common river (American decisions).
In the early 40’s, the state of Patiala undertook to divert supplies from the Ghaggar River to provide increased irrigation. A weir to divert the supplies was begun. The Punjab feared that the planned increased diversions would interfere with its existing irrigation. It filed a protest through the Resident Agent, Punjab States, and requested the Viceroy to take up with Patiala the question of removing the weir. The Viceroy agreed that the action of Patiala would result in violating the rights of the lower riparian.
A very strong legal ground for objecting to the interference in the regime of a river by constructing a barrage or a dam exists if by such a construction there is a diversion affecting existing uses of the river. There are many precedents in international law which testify to the sanctity of existing uses. In addition to these treaties which provide more or less specifically for the protection of the existing uses, such protection is also provided by all the numerous treaties which stipulate against material or prejudicial alteration of the status quo without further agreement of the parties. (Prussia-Netherlands 1850, Sweden-Norway 1905, GermanyLithuania 1928, Lithuania-Poland 1938).
As the law governing the uses of international rivers has not yet been codified, we have to look to the work of an international law group, like the International Law Association that has dealt with the problem, to ascertain the current thinking as to the principles of law that should govern this subject.
Considerable progress has been made in the formation of principles by the International Law Association. At its last session at Hamburg in August 1960, the Association adopted a resolution which provides for resolving disputes between co-riparians in four stages:
(a) Consultation with a view to arriving at a settlement as to their respective shares in the benefits of a common river system.
(b) In the event of failure to arrive at an agreement through consultation, a commission should be constituted and the matter should be referred for determination to that commission.
(c) If this also fails, then the matter should be submitted to arbitration.
(d) As a last resort, the dispute may be taken to the International Court of Justice.
The effect of this resolution is to assert that a riparian is under a duty to refrain from causing a change in the existing regime of any international river, which could interfere with the exercise by a co-riparian of its right to share in the benefits of that river, without consulting that co-riparian.
The law on the subject of riparian rights is fairly clear. This being so, it is the duty of all peace-loving states to resort to negotiations for the settlement of disputes affecting riparian rights, or indeed for that matter any other right. In the event of the failure of negotiations, the machinery of international law provides for the settlement of disputes by the well established principles of arbitration. Should a party refuse to have the differences resolved through good offices or arbitration, it is incumbent upon member states of the United Nations to invoke the peaceful procedures provided by the Charter of the United Nations for the settlement of differences. Only when a state’s legal and moral position is weak, it hesitates to pursue the established and civilized procedure of settlement of disputes by peaceful means.
In the present context of international affairs, there is no other means of settlement of disputes except by means other than war. This should be the cardinal objective of all countries that wish to see the consolidation of international law so that the element of arbitrariness and provocation is removed from the arena of international affairs.