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

Equitable Utilisation / 109 110 / International Watercourses Law and Its Application in South Asiawidely recognised as rules of customary international law andsupported by state practice, judicial prouncement and thewriting of publicists.3.2 The Rule of Equitable Utilisation in IWLIn order to share and allocate waters in an IWC, Article IV ofthe Helsinki Rules on theUses of Waters of International Rivers provides:“Each basin State is entitled, within its territory, to areasonable and equitable share in the beneficial uses ofthe waters of an international drainage basin”. 19This article is supplemented by Article V, 20 which provides thefactors in determining what uses are reasonable and equitable:“1. What is a reasonable and equitable share within themeaning of article IV is to be determined in the light of allthe relevant factors in each particular case.2. Relevant factors to consider include, but are not limited to:(a) the geography of the basin, including in particular theextent of the drainage area in the territory of eachbasin state;(b) the hydrology of the basin, including in particular thecontribution of water by each basin state;(c) the climate affecting the basin;(d) the past utilization of the waters of the basin, includingin particular existing utilization;(e) the economic and social needs of each basin state;(f) the population dependent on the waters of the basin ineach basin State;(g) the comparative costs of alternative means ofsatisfying the economic and social needs of each basinState;(h) the availability of other resources;19 ILA’s Helsinki Rules (1966), pp. 486-488.20 Ibid.(i) the avoidance of unnecessary waste in the utilizationof waters of the basin;(j) the practicability of compensation to one or more ofthe co-basin States as a means of adjusting conflictsamong uses; and(k) the degree to which the needs of a basin State may besatisfied, without causing substantial injury to a cobasinState.3. The weight to be given to each factor is to be determinedby its importance in comparison with that of other relevantfactors. In determining what is the reasonable and equitableshare, all relevant factors are to be considered together anda conclusion reached on the basis of the whole.”Thus, from the assessment of Articles IV and V, it can beargued that there is no single definition of what equitablemeans. Its assessment, however, is to be based on a number offactors. Therefore, the application of equitable utilisation couldbe different for different drainage basins considering theparticular circumstances prevailing in each basin.Regarding Article 5 on equitable and reasonable utilization andparticipation, the UNCIW also holds similar attitudes, whichstipulate that: 21“1. Watercourse States shall in their respective territoriesutilize an international watercourse in an equitable andreasonable manner. In particular, an internationalwatercourse shall be used and developed by thewatercourse State with a view to attaining optimal andsustainable utilization thereof and benefits therefrom,taking into account the interests of the watercourse Statesconcerned, consistent with adequate protection of thewatercourse.2. Watercourse States shall participate in the use,development and protection of an international watercourse21 36 ILM (1997), pp. 700-720.