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

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Equitable Utilisation / 127 128 / International Watercourses Law and Its Application in South Asiadevelopment and life standards of the North and South is hugeand the poverty in the South is terrible. There are billions ofpeople who are living below the $ 1 daily income and they aredeprived of the minimum amenities of life. The concept ofachievement of the target of halving world poverty by 2015 isbased on the idea of distributional equity in which it is certainlypossible to justify the notion of preferential treatment fordeveloping states. 70 As described below, the notion ofenvironmental protection and sustainable development in whichthe developed world is required to provide more funding andtechnology to developing countries to carry out sustainabledevelopment stresses the idea of distributive justice.Equity has developed into a major legal system encompassingthe civil and common-law systems, albeit the two system’sapproaches differ. The common law system developed inEngland as a separate system of law with its own normativestatus. Equity is not only a principle but also a collection ofrules. As described by Rossi“the common law eventually freed equity from itsrestrictive function ‘as a means of correcting specificlaws’ and in so doing, made equity ‘an independentsource of fresh rules of law’ and, indeed, a newsystem of law". 71Equity provides international tribunals with a discretionary(widely accepted) means of avoiding negative effects and somelacunae in the law. 72 Equity has become an indispensable partof modern democracies and their judicial, political and social70 Department of International Development (DFID), Halving WorldPoverty by 2015, London: 2000, pp.20-22. Also see supra note 67, pp.10469-10484.71 C. Rossi, Equity and International Law, New York: TransnationalPub., 1993, p. 32; this above quotation refers to the writing of the juristGustav Radbruch.72 Ibid. p. 38; also see D. Browne (ed), Ashburner’s Principles of Equity,London: Butterworth, 1933, p. 10systems in order to ensure greater fairness and justice. It isimbued with such elements as are needed for the achievementof broader goals in order to abate hindrances to the commonaspirations of the people in a modern liberal world. Equity isnot to be construed as Statutes, but rather as a general basisaround which much of the law of it has been formed. Itfrequently appears as part of reasoning in judgements, and hasrelevance to the law of trusts. 73 Equity should be considered notonly as an individual rule but also as a collection of principleswhich are often referred to as rules of equity.3.5 Types of EquityAside from distributive equity, which is perhaps best describedas an emerging norm, the use of equity in jurisprudence hasoften been divided into three types, equity infra legem, equitypraeter legem and equity contra legem. 74 Some commentatorshave argued that a decision ex aequo et bono is a fourthcategory, which is envisaged in Article 38(2) of the Statute ofthe ICJ. 75 The notion of equity has evolved and become anindispensable part in the major legal systems of the world. As aresult, it is now widely recognised as a source of internationallaw. Article 38 of the ICJ provides:“the court whose function is to decide in accordance withinternational law such as are submitted to it, shall apply:c. The general principles of law recognised by civilisednations;”73 P. Todd, Cases and Materials on Equity and Trusts, London:Blackstone, 1996, p. 1.74 V. Lowe, “The Role of Equity in International Law” (1992) in 56AYBIL, p. 56-57.75 Supra note 69, p.570. Frank and Sughrue have correctly argued it asfourth type of equity.
Equitable Utilisation / 129 130 / International Watercourses Law and Its Application in South AsiaHiggins 76 argues that Equity infra legem refers to the situationfaced by a court that has to choose between more than oneinterpretation of a legal rule; each interpretation beingacceptable from the legal point of view. In this circumstance,equity infra legem allows the court to determine whichinterpretation is the most just, considering the circumstancesand balancing the rights and obligations of the contendingparties.With regard to equity praeter legem, Lowe has argued that it issimilar to the ratio decidendi in municipal law, but completelydiffers from international law. 77 However, its application is tofulfil the lacunae in the elaboration of rules, the content ofwhich are too general. But, it is debatable whether or not suchlacunae exist in certain circumstances. Cheng takes the view 78that such authorisation is indeed required, but there are otherswho disagree with him on the acceptance of equity praetorlegem. Even if the lacunae exist, the judge has the authority tofill them by his or her interpretation. Higgins held the view thatequity contra legem is “a softenening of the applicable normfor extra-legal reasons.” 79 It is apparent from the analysis thatthe role of equity as a means of correcting the application of alegal rule is still a moot point.The use of equity contra legem is to soften the application foran extra-legal reason. Higgins argues that the very purpose ofusing equity is that it is fulfilling the basic objectives as a tool.For some, equity allows the decision rather than embrace a justsolution. That is to say, equity does not only provide a solution;but rather, it gives broader discretion for having a fair andacceptable solution to the dispute. It is based on the idea that a76 R. Higgins, Problem and Process: International Law and How We UseIt, Oxford: Clarendon Press, 1994, p. 219.77 Supra note 74, pp. 58-59.78 Supra note 76, p. 220.79 Supra note 66 p. 220.court has the right to decide a case contrary to the relevant legalrules when it considers such rules to be 'unjust' in the deliveryof a fair verdict in tune with equity contra legem. Unlike theother two forms of equity, equity contra legem can go beyondthe ambit of legal rules in order to obtain the required andexpected result. In this sense, equity contra legem could bevery similar to the ex aequo et bono principle, which does notwork under the legal rules but rather contrary to the confines ofthe rules of law. In essence, it works beyond the legal regime.Conversely, within this rule, the court is free to apply suchprinciples, as it deems suitable in the interest of fair justice.There are many examples in international arbitral tribunalswhere infra legem has been applied and decisions made. Forexample, the Iran-US claim tribunal decided a series of disputesbetween the parties by its application. 80 In ascertaining theamount of compensation against nationalisation, there is noproper rule as such, that explicitly stipulates a certain amount ascompensation. In such circumstances, equity provides thearbitrator with a principle to ensure the fair amount beawarded. 81The general notion of equity is designed to be an aid todecision-makers in order to ensure greater justice and fairness.It is not possible by the application of the rigid provision of lawbut by the application of other factors such as socio-economic,cultural or political ones. Moreover, the achievement of a fairresolution of a dispute always requires the application ofequity. In this light, its invocation is essential. It should,however, not be understood that equity falls beyond the legalambit or allows decision makers to decide as they please. It has80 16 Iran-US Claims 1987, 112, p. 221: in Starrett Housing Corp v. Irancase, the Tribunal supports the principle that when the circumstancesmilitate against calculation of a precise figure, the Tribunal is obligedto exercise its discretion to ‘determine equitably’ the amount involved.Also see II Iran-US Claims 1986, Harza v. Iran, T. R. 76, p. 11.81 Supra note 74 p. 57-58.
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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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ADBAJILAus.JILAYBLADPILALCCASEANAGO
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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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Introduction / 13 14 / Internationa
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Legality River Linking Project / 25
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