Upreti, Trilochan, International Watercourses Law and Its Application ...

Equitable Utilisation / 175 176 / International Watercourses Law and Its Application in South AsiaFitzumaurice, 235 the Finnish-Swedish Commission is workingas a national entity in both nations without any problem. It isfunctioning as a court and administrative organ in both states,to the exclusion of national courts and administrative organs.This may only be possible where the judicial systems,procedures and existing law are as close they are in both thesecountries. Fitzumaurice further argued that this legal proximityallows a solution that may be called 'merged sovereignty'. Inseveral respects, it represents the best example of internationalco-operation, one that has positively honoured the rights ofindigenous people. The Sami people’s inherited rights overreindeer and fishing have been protected and enhanced.However, the Joint River Commission between India andBangladesh established under a 1977 agreement, which waslater upgraded to Ministerial level, failed to obtain itsobjectives due to the differences of opinion on how to augmentflow in the dry season. This prevented the Commission fromobtaining the objectives set out on its establishment. 2363.14 ConclusionsThe importance of equity in the modern world is paramount.The application of it in political, socio-economic, trade andenvironmental issues has become a common dimension. Its linkwith politics creates a truly democratic system. Similarly, in theenvironmental dimension, it secures healthy environmentalrights for both present and future generations. In the area oftrade, commerce and economics, equity has become an explicitlink for vouchsafing the judicious economic rights ofdeveloping nations to participate in a healthy and equitableeconomic and international trade system. Thus, equity bridges235 Supra note 1, p. 461.236 S. M.A. Salman & K. Uprety, Conflict and Cooperation on SouthAsia’s International Rivers: A Legal Perspective, the Hague: KluwerLaw, 2003, pp. 151-159.the gap between wealthy and poor nations reconciling thedivergent interests of the developing and developed nations.In the legal sphere, equity can be used to administer fair andrational justice to all people of the world. Moreover, itsapplication here is to ensure fairness and justice, and to addressthe interests of the contestant parties. Its application is mostappropriate wherever there are legal lacunae, rigidity orinability to resolve issues related to particular exigencies. It canbe argued that without recourse to equity, a proper and justadjudication of IWL disputes is not possible. As a principlerelied upon on numerous occasions, it has been recognised bythe majority of treaty regimes and both supported and advancedby courts and tribunals, municipal and international. Mostwritings of the publicists support the notion that equity hasbeen assimilated into IWL. However, the obligation not tocause any harm or deprive other watercourse states of theirrights always binds states in each circumstance. Eachwatercourse state must always comply with this duty, whichimplies that a use is inequitable if it inflicts any injury orharm. 237However, the said rules are by no means complete anduniversally accepted. There are many matters which are stillcontentious 238 and particularly criticised by some upstream anddownstream states alleging that the reasonable and equitablerule favours the other. Perhaps, Jennings may be right to argue237 Commentary, YBILC, (1984), pp. 340-341.238 Supra note 1: Fitzmaurice has argued that paragraph 1 and 2 of Article7 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 theinstrument, France criticized the draft, stating the haste in negotiationshad created serious procedural discrepancies, and imbalance betweenup and downstream states with many ambiguities. Ethiopia abstained,stating that the draft favours downstream states at the price of upstreamstates.