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

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.