Speech by Zulfiqar Ali Bhutto

on
Riparian Rights in International Law
Address at Sukkur Law College, April 24, 1961

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 riparians 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 coriparians, 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 others 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
Indias 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 40s, 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 wellestablished 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 states 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.

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