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

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.