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

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Equitable Utilisation / 123 124 / International Watercourses Law and Its Application in South Asiaout how to discharge and dispense the requirements of theseArticles. Compliance with these Articles enhances cooperation,prevents conflicts and encourages the notion of equity.Therefore, international law imposes on a basin state theobligation to consult and negotiate in good faith with co-basinstates. As Bourne advocates, the international legal obligationimposed on watercourse states is the same: that is, not to causeany harm from their own work. 61 The view is established by theUNCIW and pronouncements of courts and tribunals asevaluated earlier.From the legal viewpoint, the UNCIW is applicable to allmember states equally under all circumstances. However, inpractice, it is applied against those that are weak, vulnerableand poor. For instance, the construction of the Aswan dam onthe Nile was not legally right as per the notion of the above rulethat the construction must not adversely affect other ripariancountries. In this case, Egypt had not fulfilled its duty toconsult and negotiate. Even then, the mammoth work wasundertaken by the Soviet Union when the western nationsrefused to get involved because of the dubious legality of thisconstruction project. 62 Even though the western countries andUN agencies refused to get directly involved, the constructionof the Aswan Project was carried out against interests of eightother co-riparian countries. Similarly, India also undertook theconstruction of the Farakka dam by means of her own resourceswhen foreign involvement was denied, regardless of Pakistan’sobjection. 63 Such a notorious “might is right” attitude was alsoexhibited in the Chicago diversion case. 64It is the argument of the author that if recourse to internationallaw were taken to seek riparian clearance, the proposedundertakings mentioned above would have been judged illegal.In such circumstances, states are able to carry out such illegalwork only if they are financially and technically self-reliant andinternational law cannot prevent them from doing so (or at leasthas not done so to date). As poor nations with their weakeconomic and power base cannot carry out such works, theirplight is one of victimisation through discrimination. Whatneeds to be done is that illegal work must be stopped, whetherthrough the use of economic sanctions, trade restrictions, or anysuitable means as stipulated by the UN, including by SecurityCouncil resolution. 65 If the international community werewilling to do so, it would lead to the realisation by all peoplesof the world that IWL has relevance and can be implemented.Otherwise, the creation of a system for encouraging theimplementation of the legal rules and discouraging the breachof its provisions would be the most desirable option.61 C. B. Bourne, "Procedure in the Development of InternationalDrainage Basins: Notice and Exchange of Information”(1972) in 22UTLJ, p 205; also see R. Rosentock, "Current Development: FortySixth Session of the International Law Commission- InternationalWatercourses" (1995) in 89 AJIL, p. 392.62 A. K. Biswas, "Indus Water Treaty: The Negotiating Process" (1992)in 17 WI, p. 201. He asserted that international funding agencies havealso declined to provide loans for development of international waters,unless the countries concerned reach a mutually acceptable treaty.Without external financial assistance, developing countries have beenunable to construct capital intensive water development projects oninternational rivers.63 Supra note 6, p. 221; also see supra note 48 (Ganges), p. 64-68: Indiatemporarily interrupted Indus waters to Pakistan in 1948, againstPakistan’s historic and consumptive right.64 Ibid. Also see D. C. Piper, "International Law and Environment forMunicipal Litigation: The Chicago Diversion Case” (1968) in 62 AJIL,p. 451.65 D. J. Harris, Cases and Materials on International Law, London:Sweet & Maxwell, 1998, pp. 1057-1060. Appropriate measures arestipulated in chapter 7, Articles 39-51 of the UN Charter. Economicblockades were imposed on Iraq and Libya; such blockades may beappropriate to ensure compliance with these laws.
Equitable Utilisation / 125 126 / International Watercourses Law and Its Application in South Asia3.4 Origin and Development of EquityEquity can be described as synonymous to the basic notion offairness and natural justice. It is also directly related to the ideathat human behaviour is directed by common moral, ethical andcultural principles. Equity can also be regarded as aconstructive, positive and liberal concept that helps resolveconflicts and tensions through the reconciliation of conflictinginterests. Thus, it has become a significant element of thepolitical, economic and legal spheres of modern society, 66reflected in democratic ideals as well as in the common andcivil law systems of the world. 67An attempt has been made to provide an analytical descriptionof the development of equity in terms of national andinternational political as well as legal systems. In the legalsphere, equity has played a crucial role in resolving conflicts inthe sharing and allocation of water and is regarded as the besttool to reconcile the interest of each contending party to itssatisfaction. The role of equity in shared natural resources andits relation to IWL will be dealt with. Finally, the ICJ'sjurisprudence on equitable utilisation shall be critically assessedbased on the study commensurate with state practice and itsrelevance i.e., for future posterity. The interpretation of intergenerational(right of present and future generations) equity andthe need of a NIEO in order to bridge the gap between the66 S. Chowdhary, "Intergenerational Equity: Substratum of the Right toSustainable Development" in S. Chowdhary et al (eds), The Right toDevelopment in International Law, Dordrecht: Kluwer Academic Pub.,1992, p. 241.67 D. A. French, "The Role of International Law in the Achievement ofIntergenerational Equity" (1999) in 31 ELR, p. 10469; also see J. Kokolt,“Equity in International Law” in F. L. Tooth (ed), Fair Weather? EquityConcerns in Climate Change, London: Earthscan, 1999, p. 173.North and the South will also be evaluated in the context of thedemand for an equitable society in the modern era. 68Equity developed in part due to shortcomings in the commonlaw. Frank and Sughrue have argued that the development ofequity in municipal legal systems (civil and common law) hasevolved in three stages:"First, the sovereign granted dispensations tosubjects exposed to inordinate hardship in a specificsituation. Second, precedents accumulated,evolving into a system of equitable norms parallelto the main body of the law and displacing thesystem of royal dispensation. In the last stage,equitable principles became a part of the law.” 69Equity acts in this sense to provide a fair solution to disputes byreconciling conflicting interests where there is no clear law. Toequity as a ‘softener’ of the common law, we can add thenotion of distributional equity, although it is as yet only anemerging norm, with a good deal of political content.Distributional equity suggests that richer states are normallybound to distribute at least some of their resources to poorerstates so as to ensure a more equal world. It may be useful todistinguish between the overlapping meanings of the termequity. As stated earlier, in the common law, the concept ofequity has been used to bridge the lacunae, remove the rigidityof law for fairness and to select one of the best interpretation oflaw for ensuring justice. But the expression ‘distributionalequity’ refers more to the concept of providing a better life forthe people of the developing world. The present gap in the68 U. Baxi, “The New International Economic Order, Basic Needs andRights: Notes towards Development of the Right to Development”(1983) in 23 IJIL, pp. 225-245.69 T. M. Frank and D. M. Sughrue, "The International Role of Equity-as-Fairness" (1993) in 81 GLJ, p. 564; see M. Akehurst, ”Equity andGeneral Principles of Law” (1976) in 25 ICLQ, pp. 801-825; also seeR. A. Newman, Equity and Law: A Comparative Study, New York:Oceana Pub, 1961, p. 34.
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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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