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

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Equitable Utilisation / 111 112 / International Watercourses Law and Its Application in South Asiain an equitable and reasonable manner. Such participationincludes both the right to utilize the watercourse and theduty to cooperate in the protection and developmentthereof, as provided in the present Convention.”Each watercourse has unique features that demand separatesolutions. However, the justifiable principle to address eachcircumstance is that of reasonable and equitable utilisation. Itembraces equity, rationality, fairness, justice, equality and otherimportant elements of sustainability. In determining whether ause is equitable or not, factors relevant to equitable andreasonable utilization as envisaged in Article 6 of the UNCIWshould be considered: 22“1. Utilization of an international watercourse in an equitableand reasonable manner within the meaning of article 5requires taking into account all the relevant factors andcircumstances, including:(a) Geographic, hydrographic, hydrological, climatic,ecological and other factors of a natural character;(b) The social and economic needs of the watercourseStates concerned;(c) The population dependent on the watercourses in eachwatercourse State;(d) The effects of the use or uses of the watercourse in onewatercourse State on other watercourse State;(e) Existing and potential uses of the watercourse;(f) Conservation, protection, development and economyof use of the water resources of the watercourse andthe costs of measures taken to that effect;(g) The availability of alternatives, of comparable value,to a particular planned or existing use.2. In the application of article 5 or paragraph 1 of this article,watercourse states concerned shall, when the need arises,enter into consultations in a spirit of cooperation.22 Ibid.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 a reasonable and equitableuse, all relevant factors are to be considered together and aconclusion reached on the basis of the whole.”Again, the role of equity is relevant in fixing the conditions ofwhat is equitable and reasonable use of such waters. Insummary, these rules are meant to resolve any conflict ordispute between the contestant states in a fair manner. 23 Theserules clearly set out the conditions and prerequisites that needto be taken into consideration when determining whether a useis equitable or not.The use of an IWC should be undertaken in such a way that itwill not prejudice or be harmful to any other watercourse states.The obligation not to cause any harm to the other watercoursestate is an inseparable part of equitable and reasonableutilisation. The other aspect of equitable utilisation is to sharethe benefits and costs of any watercourse project developed bya watercourse state. This implies that if work done by anupstream state yields any benefits for the downstream state, itmust be shared on the basis of a cost benefit-analysis;otherwise, it could be a case of unjust enrichment. 24Furthermore, equitable utilisation requires a continuous processof giving information, negotiation and cooperation among theriparian states for the beneficial use of a shared watercourse. 25The rule of equitable utilisation was predominantly developedand enunciated for the division, allocation and sharing ofmarine resources and IWC’s among contestant states. Equitableutilisation has emerged as a rule of customary international lawand is the cardinal rule in the area of delimitation of the23 Supra note 1, pp. 16-25.24 Factory of Charzow case (1928), PCIJ Reports, p. 47.25 Supra note 4, p. 548; S. C. McCaffrey, The Law of InternationalWatercourses, Oxford: Oxford University, 2001, p. 340.
Equitable Utilisation / 113 114 / International Watercourses Law and Its Application in South Asiacontinental shelf, allocation of marine resources and IWCissues. However, the political use of equity and the use ofequitable utilisation in legal spheres are different. The politicaluse of these words is always contentious and disputed, whilstthe legal sphere recognises it as a customary rule ofinternational law. For example, the use of equity in South-North relations, particularly in respect of internationalcooperation, entails providing resources and technologies, anissue that is always challenged by the North. 26 The politicalconcept of equity has been used to get unconditional financialresources from the North, whilst the legal use of equity is theapplication of the Articles 5 and 6 of the UNCIW and theprinciple enunciated by the ICJ in numerous cases as evaluatedin this research. The legal concept of equity is well defined andsufficiently certain for implementation. With regard to thepolitical concept of equity, the North has always maintainedthat it is not legally or even morally bound to help the South,whilst the South has taken the reverse position on these issues.Hence it is fair to say that the political concept of equity isvague and limited, perhaps to the point of being a slogan, andwithout compromise between two groups is not achievable. Toillustrate this point, CERDS and NIEO are always disputed.Thus the political use of equity remained a disputed whilst itslegal use has been unanimously recognised by both camps.After the prolonged and sustained effort of the ILA in itsHelsinki Resolution 1966, the rules of equitable utilisation asdeterminants of the allocation and sharing of water resourcesamong the riparian countries were adopted, which has becomethe substantive law ever since. 27 However, they are an earlydevelopment made by non-governmental organisations. At thesame time, it should be borne in mind that the outcome of therules is the result of largely accepted state practices, scholarlywriting and case law. That is to say, it is a reflection of theexisting customary rules of international law. 28There is a set of rules that provide for the rights, duties andresponsibilities of watercourse states in matters relating to thesharing of resources. The basic rule is contained within ArticleIV of the Helsinki rules. 29 The formulation of those rules wasundertaken as a collection of general principles drawn fromregional treaties, judicial pronouncements and academicwritings on the subject. The ILC has been involved in thecodification and progressive development of international lawsince 1970. After sustained efforts, the ILC submitted its draftof rules to the UNGA (Sixth Committee). Subsequently, withnecessary debate, modification and negotiation at the UN,adopted the UNCIW on May 20, 1997. The convention is moreadvanced and refined than the Helsinki rules. It set out the basicrule(s) in its Articles 5, 6 & 7. 30The provisions made in the UNCIW describe the factors thatneed to be taken into account. It is important to define therelevant factors to be considered that will significantly helpresolve the dispute during negotiations and other diplomaticefforts to avert and mitigate future conflicts. The socioeconomicand demographic aspects of the populations, and theexisting and potential uses are given equal weight in order todetermine whether or not a particular use is equitable. It isuseful to mention here that in the context of rejection of thepopulation factor (huge population was a reason to demandpriority) in determining equitable utilisation by the ICJ in itsdecision of the delimitation of a continental shelf, it wasthought essential to define those elements clearly, as mentioned26 R. P. Anand, Confrontation or Cooperation? International Law andthe Developing Countries, Dordrecht: Martinus Nijhoff, 1987, pp. 111-120.27 ILA report of the fifty second conference (1966), pp. 478-532.28 B. R. Chauhan, Settlement of Disputes in International DrainageBasins, Berlin: E. Schmit, 1981, p. 457; also see supra note 4, p. 548.29 ILA report of the fifty second conference, Helsinki (1966), p. 486.30 36 ILM (1997), p. 700.
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International WatercoursesLaw and I
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PrefaceIn this book, the author has
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International Treaties and other Do
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GlossaryMap of the Ganges BasinThe
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Chapter- ThreeEquitable Utilisation
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Introduction / 1 2 / International
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