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

280 / International Watercourses Law and Its Application in South Asia Conclusions and Recummendations / 281The law developed so far is based on the principle ofreasonable and equitable utilisation. Some argue that it is tooambiguous a principle with major problems in its interpretationand application. 6 There are, however, several guidelines inArticle 6 for the proper interpretation and implementation ofthe provisions of such laws. The other fact is that the law isonly a tool, the dominant factors are human will and desire toconsistently address and harmonise the interests of thecontestant states. The UNCIW was adopted as a holistic,framework law in 1997, even though this UN vote was notunanimous. Several states still entertain conflicting views oncertain provisions of this law. For example, it has been arguedthat Article 5 of the UNCIW favours upstream states, whilstArticle 7 favours downstream states. Similarly, which rulesshould prevail in the event of a conflict “equitable or no harmrules” remains a disputed issue. 7 Moreover, even in theapplication of these two rules, due to the ambiguity andvagueness surrounding them, there are still conflicting ideas. 8However, the rule of equitable utilisation, which is the core law,contains guidelines and the basis for its application, but itrequires ongoing cooperation between states for its effectiveimplementation. 96 L. Caflisch, “Regulation of the Use of International Watercourses” in S.M. A. Salman & L. B. de Chazournes (eds), InternationalWatercourses: Enhancing Cooperation and Managing Conflict,Washington DC: World Bank Technical paper no 14, p. 16; also see C.B. Bourne, “The Primacy of Equitable Utilisation in the 1997Watercourse Convention” (1997) in XXXV CYBIL, pp. 215-231.7 S. C. McCaffrey, The Law of International Watercourses: Non-Navigational Uses, Oxford: Oxford University, 2001, p. 308.8 R. St. McDonald, “Charles B. Bourne: Scholar, Teacher and Editor,Innovator in the Development of International Law of Watercourse”(1996) in XXXIV CYBIL, pp. 53-87.9 J. Brunnee & S. J. Toope, “The Changing Nile Basin Regime: DoesLaw Matter?” (2002) in 43 HILJ, pp 131-151; also see supra note 1, p.467.Chapter three deals with the origin, development andapplication of equity. Furthermore, application of equity in thesharing of natural resources, the practice of the ICJ and itspredecessor, and other municipal courts and tribunals havebeen analysed. The research findings suggest that equity hasbecome the pivotal point for bridging any gaps betweencontestants views or principles. The role of equity has provenits capacity to prevent conflicts in such a way that everyinterest is addressed with a rational resolution of the problemsthat lead to conflict. In order to fill the chasm between poorstates and the developed states, to balance and preserve theinterests of present and future generations, to carry outdevelopment without adversely damaging the environment, andto accommodate all interests in a shared resource, equity hasremained a central issue. 10 Equity has given flexibility andstrength to decision-makers in harmonising the divergentinterests of disputant parties. However, it is only a tool; itsapplication requires the utmost measure of fairness with aprofusion of liberal attitude and sound discretion.The political use of equity in human rights, environment andsustainable development issues must be differentiated from thelegal use of equity. The legal use of equity in IWL has beendeveloped by the Supreme Court of the United States and someother European states in the twentieth century in the resolutionof conflicts involving the allocation and sharing of waterbetween federal states and provinces. 11 The PCIJ and the ICJhave contributed immensely to its application and developmentin their decisions for sharing and delimiting the ContinentalShelf and disputed issues arising over it. The LOSC 1982 andthe UNCIW have codified equity as a rule of customaryinternational law. Furthermore, resolution of both existing andfuture conflicts are also expected to be resolved by theapplication of equity. In fact, equitable utilisation has become10 D. French, “International Environmental Law and the Achievement ofIntragenerational Equity” (2001) in 31 ELR, pp. 10469-10485.11 Demonstrated in Chapter two.