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

Equitable Utilisation / 131 132 / International Watercourses Law and Its Application in South Asiaits own procedure that regulates its application in an effectivemanner. In this connection, equity operates within a sphere ofsettled regulations. 823.6 The Role of Equity in International LawThe role of equity in international law concerning general andshared natural resources in particular is paramount because,without it, a fair justice is not achievable. As each watercourseis unique and the law in the area is still in the developingstage, 83 it is impossible to adjudge any disputes without the aidof equity. As the population has increased along with the rise inthe standard of living brought about by innovation andscientific discoveries, the voracious appetite for more and moreresources has became the common ground for increasingcompetition among states.In the process of dispute resolution arising from shared naturalresources such as the IWC agreement among nations, the ICJand its predecessor PCIJ have developed a very rich stock ofjurisprudence in this area. 84 French has argued:“the role of equity in the jurisprudence of the ICJ,and before that, in the Permanent Court of82 R.A. Newman, Equity and Law: A Comparative Study, New York:Ocena Pub., 1961, p. 20.83 Supra note 4, pp. 40-45.84 S. Rosenne, “The Position of the International Court of Justice on theFoundation of the Principles of Equity in International Law”, in A.Boyle and P. Van Dijik (eds), Forty Years: International Court ofJustice, the Hague: Europa Institute Utrecht, 1988, pp. 85-108.85 Supra note 67, p. 10471, he argued that “numerous meanings can begiven to the legal notion of equity. However, the subdivision intovarious 'forms' of equity is rather artificial, as, in practice, the ICJ willusually utilise the principle without referring to any particularconceptual understanding of the term. Moreover, … the ICJ has beenneither consistent nor uniform in its approach to equity."International Justice has had an uneven andinconsistent history.” 85From the study of judgements rendered by the court, it appearsthat the court is not consistent and several approaches havebeen adopted. For example, before 1982, the court held theview that delimitation should be decided:“in accordance with equitable principles, and takinginto account all the relevant circumstances, in such away as to leave as much as possible to each Party allthose parts of the continental shelf that constitute anatural prolongation of its land territory under thesea.” 86But, after 1982, the court took a broader approach on the issue,holding that the ultimate aim in delimiting the continental shelfwas to arrive at an equitable result. 87 In the later case, equitableutilisation was regarded as a customary rule of international lawwhilst, in the earlier case, it was not.In the Meuse diversion case of 1937, the PCIJ came to theconclusion that the principle of equity is part of internationallaw. However, there were differing opinions on the issuebetween judges. 88 Afterwards, the world court resolved severalcases relating to the delimitation and sharing of benefitsaccruing from the utilisation of shared resources between thecontestant states.86 ICJ Reports, (1969) Germany v. Denmark and the Netherlands, p. 53.87 ICJ Reports, (1982) Tunisia v. Libya, p. 59.88 37 PCIJ (ser.A/B) Nos. 70, 77: the principles of equity are principles ofinternational law, and as such they have often been applied byinternational tribunals. However, it was the dissenting opinion of JudgeHudson, and the majority decision did not dealt with equity.